Commentary on Article 255. Act of Terrorism of the Criminal Code of the Republic of Kazakhstan
1. An act of terrorism, that is, the commission of an explosion, arson or other acts creating a danger of loss of human life, causing significant property damage or the occurrence of other socially dangerous consequences, if these acts are committed for the purpose of disrupting public security, intimidating the population, influencing decision-making by state bodies of the Republic of Kazakhstan, a foreign state or an international organization, provoking war or complicating international relations, as well as a threat to commit the said acts for the same purposes —
shall be punishable by imprisonment for a term of six to ten years, with confiscation of property.
2. The same acts committed:
1) repeatedly;
2) with the use of weapons or objects used as weapons, explosives or explosive devices that may create a real threat to the life and health of citizens, —
shall be punishable by imprisonment for a term of eight to twelve years, with confiscation of property.
3. The acts provided for in Parts One or Two of this Article, if they:
1) are associated with the use or threat of use of weapons of mass destruction, radioactive materials, and the commission or threat of commission of mass poisonings, the spread of epidemics or epizootics, as well as other acts capable of causing mass loss of human life;
2) have negligently caused the death of a person or other grave consequences, —
shall be punishable by imprisonment for a term of twelve to seventeen years, with confiscation of property, with or without deprivation of citizenship of the Republic of Kazakhstan.
4. An attempt on the life of a person committed for the purpose of disrupting public security, intimidating the population, influencing decision-making by state bodies of the Republic of Kazakhstan, a foreign state or an international organization, provoking war or complicating international relations, as well as an attempt on the life of a state or public figure committed for the same purposes, or for the purpose of terminating their state or other political activities, or out of revenge for such activities, or an attempt on the life of a person associated with an attack on persons or organizations enjoying international protection, buildings, structures, the taking of a hostage, buildings, structures, means of communication and communications, hijacking, as well as the seizure of an aircraft or watercraft, railway rolling stock or other public transport —
shall be punishable by imprisonment for a term of fifteen to twenty years or life imprisonment, with or without deprivation of citizenship of the Republic of Kazakhstan, and with confiscation of property.
Note. A person participating in the preparation of an act of terrorism shall be released from criminal liability if, through timely notification of state bodies or by other means, they contributed to the prevention of the act of terrorism, provided that their actions do not contain the elements of another criminal offence.
Terrorism is one of the most dangerous crimes of modern times and is international in nature. Due to its geopolitical position, shaped by changes in the foreign policy situation, including instability in countries of the Middle East and Near East geographically close to the Central Asian region, Kazakhstan has faced the problem of international terrorism and the commission of acts of terrorism on its territory. The tragic events in the western and southern parts of the country, as well as the growing number of individuals assisting religious extremism and terrorism, have demonstrated the full severity of this problem.
The first attempt to define the concept of “terrorism” was made at the Third International Conference for the Unification of Criminal Legislation, held in Brussels in 1930. At present, the various distinctive features of terrorism have already been characterized with sufficient completeness in international documents and have been incorporated into national legislation. The Law of the Republic of Kazakhstan dated July 13, 1999, “On Counteracting Terrorism,” and the Law dated February 18, 2005, “On Counteracting Extremism,” have been adopted, as well as the Resolution of the Government of the Republic of Kazakhstan dated December 22, 2010, “On Approval of the Rules for Organizing Activities in the Field of Counteracting Terrorism in the Republic of Kazakhstan.” These acts establish the legal framework for the prevention of and counteraction to terrorism and extremism, define the basic conceptual framework and the competence of state bodies in this area, as well as the fundamental principles for ensuring the protection of citizens' rights and freedoms in this sphere.
Kazakhstan is a party to all fundamental universal international instruments in the field of combating terrorism. This is evidenced by the list of the principal legal acts: the Law of the Republic of Kazakhstan dated October 23, 2000, “On Ratification of the Treaty on Cooperation between the Member States of the Commonwealth of Independent States in Combating Terrorism”; the Law of the Republic of Kazakhstan dated April 18, 2002, “On Ratification of the Shanghai Convention on Combating Terrorism, Separatism and Extremism”; the Law of the Republic of Kazakhstan dated July 4, 2002, “On Accession of the Republic of Kazakhstan to the International Convention for the Suppression of Terrorist Bombings”; the Law of the Republic of Kazakhstan dated October 2, 2002, “On Accession of the Republic of Kazakhstan to the International Convention for the Suppression of the Financing of Terrorism”; the Law of the Republic of Kazakhstan dated May 14, 2008, “On Ratification of the International Convention for the Suppression of Acts of Nuclear Terrorism”; and the Law of the Republic of Kazakhstan dated January 10, 2011, “On Ratification of the Convention of the Shanghai Cooperation Organization against Terrorism.”
The Law of the Republic of Kazakhstan dated July 13, 1999, “On Counteracting Terrorism,” defines terrorism as an ideology of violence and a practice of influencing decision-making by state bodies, local self-government bodies or international organizations through the commission or threat of commission of violent and/or other criminal acts associated with intimidating the population and aimed at causing harm to the individual, society and the state.
The commission of an act of terrorism receives a negative assessment not only within each particular state but also from the international community as a whole. Terrorist acts may be carried out by any means, but they are always aimed at undermining state authority and creating a feeling of insecurity and fear among the population.
The public danger of an act of terrorism lies in the fact that it is one of the most dangerous forms of criminal encroachment, based on the perpetrator's desire to instill fear and panic in others, paralyze the socially useful activities of citizens and the normal functioning of public authorities and administration, and thereby achieve their antisocial objectives.
The nature of the public danger of terrorism and other terrorist-related crimes is determined by the importance of the objects against which they are directed.
The object of an act of terrorism is public security.
The concept of “security” means the absence of danger or a situation in which someone or something is not threatened by danger. It is also used to mean “protected, shielded from danger, not posing a danger to anyone or anything; harmless.”
National security should be understood as a state of protection of vital national and state interests against internal and external threats arising in certain (key) spheres of society's life. In accordance with this approach, the Law of the Republic of Kazakhstan dated January 6, 2012, “On National Security of the Republic of Kazakhstan,” identifies the following types of national security: public, military, political, economic, information and environmental security.
Public security as a type of national security is a state of protection of the life, health and well-being of citizens, the spiritual and moral values of Kazakhstani society and the social security system against real and potential threats, in which the integrity and stability of society are ensured (subparagraph 1) of Article 4 of the Law of the Republic of Kazakhstan “On National Security of the Republic of Kazakhstan”).
Public security represents such a state of society (a system of its properties and capabilities) in which, through internal social mechanisms mediated by the functioning of various state and public institutions, its stable condition and development are maintained, conditions are ensured for the realization of the interests of the individual, society and the state, and, at the same time, their protection (with people's awareness of such protection) against threats arising from unlawful encroachments, as well as from emergency situations of a social, natural and technological nature.
Additional objects may include the life and health of citizens, property, the existing administrative order, the activities of a state authority or an international organization, etc. Therefore, terrorism should be classified as a multi-object crime.
The objective side of an act of terrorism is complex in nature and is expressed in the commission of an explosion, arson or other acts creating a danger of loss of human life, causing significant property damage or the occurrence of other socially dangerous consequences, as well as in the threat of committing such acts.
The Law of the Republic of Kazakhstan “On Counteracting Terrorism” defines an act of terrorism as the commission or threat of commission of an explosion, arson or other acts creating a danger of loss of human life, causing significant property damage or the occurrence of other socially dangerous consequences, if these acts are committed for the purpose of disrupting public security, intimidating the population or influencing decision-making by state bodies of the Republic of Kazakhstan, foreign states or international organizations, as well as an attempt on the life of a person committed for the same purposes, and an attempt on the life of a state or public figure committed for the purpose of terminating their state or other political activities or out of revenge for such activities.
An explosion means rendering an object unusable or destroying people through the use of a TNT or other charge, in other words, through the use of the destructive energy of a blast wave. An explosion results in the formation of highly heated gas under very high pressure, which, as it expands, exerts a mechanical impact (pressure, damage) on surrounding objects. By their nature, explosions are classified as physical, nuclear (atomic), electromagnetic, mechanical and chemical. Most often, an explosion occurs through the release of the chemical energy of explosive substances.
Arson means the commission by the perpetrator of unlawful actions using the destructive force of fire. Arson is the deliberate starting of a fire, that is, an uncontrolled combustion process accompanied by the destruction of material assets and creating a danger to human life.
Other acts in an act of terrorism should be understood to include the destruction of buildings and structures, the organization of accidents and disasters, the disorganization of the work of public authorities and administration, the dissemination of pathogenic bacteria capable of causing epidemics and epizootics, and other bacteriological or chemical contamination of land, water, air, food products, etc.
An obligatory condition, expressed alternatively, is the creation of a danger of:
1. loss of human life;
2. causing significant property damage;
3. the occurrence of other socially dangerous consequences.
The danger of loss of human life means that at least one person was exposed to such danger.
The significance of property damage in an act of terrorism should be determined depending on the value and importance of the property destroyed or damaged. The procedure for compensation for property damage caused to individuals and legal entities as a result of an act of terrorism is established by the Rules for Compensation for Property Damage Caused to Individuals and Legal Entities as a Result of an Act of Terrorism, approved by Resolution of the Government of the Republic of Kazakhstan dated August 28, 2013.
It is more difficult to assess the nature of the danger of causing damage to religious and sacred values, as well as to objects of symbolic significance, since this requires forensic examinations, including comprehensive examinations. Other socially dangerous consequences mean all other harm that does not fall within the characteristics of loss of human life and significant property damage. These may include causing citizens bodily injury of varying degrees of severity, disrupting the activities of public authorities and administration, suspending the activities of enterprises, institutions and organizations, disrupting transport traffic, etc.
Paragraph 8 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated December 8, 2017, “On Certain Issues of Judicial Practice in the Application of Legislation on Terrorist and Extremist Crimes,” states:
“The commission of an explosion, arson or other acts entails criminal liability under Article 255 of the Criminal Code in cases where it has been established that the said acts were intimidating in nature for the population and created a real danger of loss of human life, causing significant property damage or the occurrence of other socially dangerous consequences.
At the same time, the danger of loss of human life, causing significant property damage or the occurrence of other socially dangerous consequences must be real, which is determined in each specific case taking into account the place, time, instruments, means, method of committing the crime and other circumstances of the case (information on the number of people present in the area of the explosion, the power and destructive capacity of the explosive device used, and the like).
The commission of other acts creating a danger of loss of human life, causing significant property damage or the occurrence of other socially dangerous consequences specified in Article 255 of the Criminal Code should be understood as intentional acts comparable in their consequences to an explosion or arson (organizing accidents and disasters, destroying dams, damaging water supply systems, power lines and other facilities supporting the population's livelihood, spreading pathogenic microbes capable of causing an epidemic or epizootic, radioactive, chemical, biological (bacteriological) and other contamination of an area, armed attacks on populated areas, shelling residential buildings, schools, hospitals, administrative buildings, locations (deployment sites) of military personnel or employees of law enforcement, special or other state bodies; seizure and/or destruction of buildings, railway stations, ports, cultural or religious structures).
When deciding whether property damage is significant, courts should proceed from the value and importance of the destroyed or damaged property and material assets, as well as the actual expenses necessary to restore (repair) the damaged property. Causing significant property damage as a result of an act of terrorism is classified under Part One of Article 255 of the Criminal Code (in the absence of other qualifying elements of Article 255 of the Criminal Code) and does not require additional classification under Articles 202 and 203 of the Criminal Code.
For the purposes of Part One of Article 255 of the Criminal Code, other socially dangerous consequences may include, in particular, causing moderate bodily harm to several persons, prolonged disruption of the operation of an enterprise (enterprises) and/or institution (institutions), disorganization of the activities of public authorities and local self-government bodies, and significant deterioration of the environmental situation (for example, pollution of water and the atmosphere, land degradation and other negative changes in the environment requiring substantial material costs and a long period of time to eliminate their consequences).
When deciding whether the disruption of the operation of an enterprise or institution was prolonged, courts should proceed from the specific circumstances of the case, taking into account the duration of the suspension of operations, the specifics of their activities, the amount of losses caused and other circumstances.”
By its legal construction, the corpus delicti is formal. An act of terrorism should be considered completed from the moment the perpetrator performs the acts specified in the disposition of Part 1 of Article 255 of the Criminal Code of the Republic of Kazakhstan. The occurrence of consequences is not mandatory; it is sufficient that an actual danger of loss of human life, causing significant property damage or other socially dangerous consequences has been created.
Criminal liability for an act of terrorism also provides for the threat of committing the above-mentioned acts. A threat as a form of psychological violence is characterized by the following principal features:
- an externally expressed determination to commit an act aimed at causing harm to a legally protected object;
- reality, that is, the ability of the threat to create a belief in the possibility of its implementation (where the perpetrator has the ability to carry it out). A threat that, for objective reasons, was not perceived by the victim and is objectively impossible to carry out cannot be recognized as real;
- actuality, which means the objective existence of the threat, its connection with information about a specific danger, its external expression and degree of intensity;
- definiteness — the threat must contain an indication of a specifically defined act.
A threat to commit an act of terrorism may be open or anonymous and may be addressed both to the public and to state authorities. The form in which it is disseminated is irrelevant for the classification of the crime: orally, in writing, through the media, etc.
If the threat was unrealistic and was expressed in nothing other than a statement of intent, even if it was aimed at intimidating the population and accompanied by certain demands, such a threat cannot be regarded as an act of terrorism. In this case, the actions of the perpetrator should be classified as knowingly false reporting of an act of terrorism (Article 273 of the Criminal Code), since they are knowingly incapable of causing the consequences that arise as a result of the commission of acts of terrorism.
Paragraph 9 of the above-mentioned Regulatory Resolution states that a threat to commit an act of terrorism means actions accompanied by a resolute statement demonstrating the perpetrator's clearly expressed intention to commit an explosion, arson or other acts creating a danger of loss of human life, causing significant property damage or the occurrence of other socially dangerous consequences, for special purposes.
The criterion for assessing the reality of a threat is the existence of sufficient grounds to fear that the threat will be carried out.
A threat to commit an explosion, arson or other acts that intimidate the population and create a danger of loss of human life or the lives of several persons, causing significant property damage or the occurrence of other socially dangerous consequences, constitutes a formal offence and is considered a completed crime at the moment the threat to commit the said acts is communicated to the recipient, provided that the recipient perceived the threat as real.
A threat may be addressed to state authorities, local self-government bodies, organizations, state or public figures and may be open or anonymous.
A threat may be expressed in various ways, for example, through an oral statement, a written communication, a telephone message, or dissemination using technical means, information and telecommunications networks, mass media or computer technologies.
Courts should bear in mind that a threat to commit an act of terrorism differs from knowingly false reporting of an act of terrorism (Article 273 of the Criminal Code) in that false reporting of an act of terrorism is information received through the communication channels of law enforcement agencies and emergency response services concerning a knowingly nonexistent threat of an act of terrorism. In other words, in the case of false reporting, there is no threat of an act of terrorism, whereas in the case of a threat to commit an act of terrorism, the perpetrator pursues a special purpose.
If a person, with the purpose of committing an act of terrorism, attempted to carry out an explosion, arson or other acts creating a danger of loss of human life, causing significant property damage or the occurrence of other socially dangerous consequences, but was unable to commit these acts due to circumstances beyond their control, the act committed should be classified as an attempted act of terrorism.
The subjective side is characterized by intentional guilt in the form of direct intent. The person is aware that they are carrying out an explosion, arson or other acts creating a danger of loss of human life, causing significant property damage or the occurrence of other socially dangerous consequences, or threatening to commit such acts, and wishes to commit such acts.
The principal feature of the subjective side of an act of terrorism is the special purpose of its commission — disrupting public security, intimidating the population, influencing decision-making by state bodies of the Republic of Kazakhstan, foreign states or an international organization, or the purpose of terminating the activities of state or public figures or taking revenge for such activities, provoking war or complicating international relations.
Disruption of public security may be expressed in the destruction, in a particular populated area, district, region or society as a whole, of the established social climate with which citizens associate their peaceful existence; in changing the balance of psychological equilibrium and stability. Intimidation of the population means creating social destabilization and an atmosphere of public anxiety, in which fear becomes the dominant psychological state, citizens lose confidence in the safety of their own lives and health and those of their loved ones, in the protection of their rights and freedoms, and in the effectiveness of law enforcement agencies.
Influencing decision-making by state bodies of the Republic of Kazakhstan, a foreign state or an international organization means inducing the relevant entities to take actions or refrain from taking actions that are necessary for terrorists, including the adoption by public authorities of unlawful decisions under the pretext of ensuring the safety of citizens and society.
Provocation of war (from Latin provocatio — challenge) means incitement to aggressive actions with the purpose of causing a military conflict.
Complication of international relations means a conflict situation between states and systems of states, the principal social, economic and political forces, organizations and public movements operating on the world stage in the sphere of economic, political, ideological, legal, diplomatic and other ties and relations.
The objective side of an act of terrorism is largely identical to sabotage (Article 184 of the Criminal Code); the difference lies in the purposes of the crimes. Both crimes are committed with direct intent, but in the case of sabotage the intent is directed at the mass destruction of people, causing harm to their health, or destroying or damaging enterprises, structures, transport routes and means, communications facilities and facilities supporting the population's livelihood.
When considering cases involving acts of terrorism, it is always necessary to establish whether the perpetrator had the special purpose constituting an element of the subjective side of the crime. At the same time, the existence of any one of the listed special purposes is sufficient to recognize an act as an act of terrorism.
If none of the purposes for committing the acts has been established, the perpetrators shall be held liable under other relevant Articles of the Criminal Code.
The subject of terrorism is a sane natural person who has reached the age of 14.
Part 2 of Article 255 of the Criminal Code provides for criminal liability for the commission of a qualified act of terrorism:
- repeatedly;
- with the use of weapons or objects used as weapons, explosives or explosive devices that may create a real threat to the life and health of citizens.
Repeated commission means the commission by a person of two or more acts of terrorism, provided that the person has not been convicted in accordance with the procedure established by law or released from criminal liability for the previous act of terrorism, and the limitation periods for bringing criminal liability for terrorism have not expired.
Where, in one case, a completed act of terrorism was committed and, in another, an attempt to commit an act of terrorism was made, or where, in the commission of one criminal offence, the perpetrator acted as the principal offender and, in the commission of others, as an organizer, instigator or accomplice, the actions of the perpetrator should be classified in accordance with the second paragraph of Paragraph 14 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated December 25, 2006, “On the Classification of Repeated and Multiple Criminal Offences.” In such cases, when classifying the actions of a person who participated in the commission of a criminal offence as an organizer, instigator or accomplice, Article 28 of the Criminal Code and the relevant Article of the Special Part of the Criminal Code providing for liability for the criminal offence committed must be applied, while the person's own act, in which they acted as the principal offender, must be classified separately under the relevant Article of the Criminal Code.
The use of weapons means the use, for their intended purpose, of any weapons in the commission of terrorism, with the exception of weapons specified in subparagraph 1) of Part 3 of Article 255 of the Criminal Code. The use of weapons for the purpose of avoiding detention after the commission of an act of terrorism does not constitute a qualifying element.
Weapons should be understood as devices and objects structurally designed to strike a living or other target, as well as to give signals, in accordance with the Law of the Republic of Kazakhstan dated December 30, 1998, “On State Control over the Circulation of Certain Types of Weapons,” and recognized as weapons by an expert opinion. The Law classifies the following as types of weapons: firearms, cold weapons, gas weapons, electric weapons and pneumatic weapons.
Objects used as weapons may include any objects used by a person to kill, cause bodily injury or intimidate the population. Paragraph 3 of Paragraph 21 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated July 11, 2003, “On Judicial Practice in Cases of Theft,” states: “Objects that may cause bodily injury dangerous to life or health (household knives, razors, axes, screwdrivers, adapted objects such as clubs, etc.) are recognized as objects used as weapons.”
The use of weapons or objects used as weapons should be understood as their actual use for the purpose of causing harm to the life or health of the victim (firing a shot, inflicting stabbing or cutting blows, etc.), that is, using the ability of the weapon or object to strike a living target” (Paragraph 4 of Paragraph 21 of the Regulatory Resolution of the Supreme Court).
Explosives should be understood as chemical compounds or mechanical mixtures of substances capable of rapid self-propagating chemical transformation and explosion without access to oxygen (air) (for example, TNT, nitroglycerin, pyroxylin, ammonite, plastic explosive, elastite, gunpowder, solid rocket fuel and other chemical substances and their mixtures possessing the ability to undergo explosive reactions, the acquisition and storage of which require a special permit).
Explosive devices should be understood as industrially manufactured or homemade products and objects (mechanisms) that functionally combine an explosive substance and are structurally designed to produce an explosion (a primer, detonator, fuse, etc.).
According to the fourth paragraph of Paragraph 11 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan “On Certain Issues of Judicial Practice in the Application of Legislation on Terrorist and Extremist Crimes,” explosives are chemical substances and their mixtures possessing the ability to undergo explosive reactions. Explosives should be understood to include gunpowder, TNT, nitroglycerin, pyroxylin, ammonal and other chemical substances and their mixtures possessing the ability to undergo explosive reactions. Explosive devices should be recognized as objects structurally designed to produce an explosion. At the same time, weapons, explosives or explosive devices may be either factory-produced or homemade.
If, during the commission of an act of terrorism, firearms, ammunition, explosives or explosive devices that were illegally acquired, stored or manufactured were used, the actions of the person are subject to classification under the aggregate of criminal offences provided for in Articles 255, 287 and 288 of the Criminal Code.
At the same time, mere possession of weapons or objects used as weapons, explosives or explosive devices is insufficient; it is necessary that these objects have been used and that their use created a real threat to the life and health of citizens.
Part 3 of Article 255 of the Criminal Code establishes criminal liability for the acts provided for in Parts 1 or 2 of this Article, if they:
- are associated with the use or threat of use of weapons of mass destruction, radioactive materials, and the commission or threat of commission of mass poisonings, the spread of epidemics or epizootics, as well as other acts capable of causing mass loss of human life;
- have negligently caused the death of a person or other grave consequences.
The public danger of the crime provided for in subparagraph 1) of Part 3 of Article 255 of the Criminal Code lies in the fact that the commission of an act of terrorism involving the use or threat of use of weapons of mass destruction or radioactive materials, and the commission or threat of commission of mass poisonings, the spread of epidemics and epizootics, as well as other acts capable of causing mass loss of human life, creates a threat of mass loss of human life, destruction of facilities supporting the population's livelihood, contamination or destruction of animal and plant life, and may also lead to other harmful consequences for society and the natural environment.
In accordance with subparagraph 2) of Article 1 of the Law of the Republic of Kazakhstan dated July 21, 2007, “On Export Control,” weapons of mass destruction are chemical, bacteriological (biological), radiological, nuclear and toxin weapons.
When determining the types of weapons of mass destruction, account should be taken of Paragraph 1 of Article 2 of the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction (Paris, January 13, 1993), ratified by the Law of the Republic of Kazakhstan dated June 24, 1999, No. 398.
According to subparagraph 24) of Article 1 of the Law of the Republic of Kazakhstan dated January 12, 2016, “On the Use of Atomic Energy,” radioactive substances are any materials of natural or man-made origin, in any state of matter, containing radionuclides. In accordance with Part 1 of Article 1 of the International Convention for the Suppression of Acts of Nuclear Terrorism (New York, September 14, 2005), ratified by the Law of the Republic of Kazakhstan dated May 14, 2008, No. 33-4, the term “radioactive material” means nuclear material and other radioactive substances containing nuclides that undergo spontaneous decay (a process accompanied by the emission of one or more types of ionizing radiation, such as alpha radiation, beta radiation, neutron radiation and gamma radiation) and which, by virtue of their radiological properties or properties of their fission, are capable of causing death, serious bodily injury or substantial damage to property or the environment.
If illegally acquired or stored radioactive substances were used in the commission of the act, the actions of the person are subject to classification under the aggregate of criminal offences provided for in Articles 255 and 283 of the Criminal Code.
The use of weapons of mass destruction or radioactive materials means their direct use for the indiscriminate destruction of an indefinite number of persons.
A threat to use weapons of mass destruction or radioactive materials means intimidating citizens, representatives of state bodies of the Republic of Kazakhstan, foreign states or international organizations by threatening their immediate use for their intended purpose.
Mass poisoning should be understood as a disruption of the normal metabolic process in the bodies of a large number of people. Poisoning of the body can be achieved through the consumption of unsafe drinking water or food, as well as through the use of various gases.
The concepts of “epidemic” and “epizootic” are defined in Article 1 of the Code of the Republic of Kazakhstan “On Public Health and the Healthcare System,” and in subparagraph 45) of Article 1 of the Law of the Republic of Kazakhstan dated July 10, 2002, “On Veterinary Medicine,” respectively.
The spread of epidemics means the infection of a large number of people with various diseases. Diseases acquire the character of an epidemic after mass infection of people over a large territory and within a short period of time.
An epizootic is the mass spread of particularly dangerous and other infectious animal diseases within the territory of the relevant administrative-territorial unit.
Other acts should be understood as acts capable of causing mass loss of human life. The presence of the characteristic of mass scale is mandatory.
Causing the death of a person means the occurrence of the biological death of an individual as a result of the commission of an act of terrorism.
Other grave consequences in terrorism are understood to include causing serious bodily harm to several persons or moderate bodily harm to many persons, as well as causing substantial material damage.
If an act of terrorism has negligently caused the death of a person (or two or more persons), such actions are covered by subparagraph 2) of Part 3 of Article 255 of the Criminal Code and do not require additional classification under Articles 99 and 104 of the Criminal Code.
Intentional causing of the death of a person (or two or more persons) is subject to classification under Part 4 of Article 255 of the Criminal Code.
The subjective side of the crime provided for in subparagraph 2) of Part 3 of Article 255 of the Criminal Code differs from the other paragraphs and parts of this provision in that it is characterized by a dual form of guilt. With regard to the act (the act of terrorism), guilt is characterized by intent, while with regard to the consequences that have occurred (death or other grave consequences), it is characterized by negligence in the form of recklessness or carelessness. However, as a whole, in accordance with Article 22 of the Criminal Code of the Republic of Kazakhstan, such a crime is recognized as having been committed intentionally.
The objective side of Part 4 of Article 255 of the Criminal Code is constituted by an attempt on the life of a person committed for the purpose of disrupting public security; intimidating the population; influencing decision-making by state bodies of the Republic of Kazakhstan, a foreign state or an international organization; provoking war or complicating international relations; as well as an attempt on the life of a state or public figure committed for the same purposes, or for the purpose of terminating their state or other political activities or out of revenge for such activities; or an attempt on the life of a person associated with an attack on persons or organizations enjoying international protection, buildings and structures, the taking of a hostage, the seizure of buildings, structures, means of communication and communications, hijacking, as well as the seizure of an aircraft or watercraft, railway rolling stock or other public transport.
The provision under consideration establishes liability for:
- an attempt on the life of a person committed for the purpose of disrupting public security, intimidating the population, influencing decision-making by state bodies of the Republic of Kazakhstan, a foreign state or an international organization, provoking war or complicating international relations;
- an attempt on the life of a state or public figure committed for the purpose of disrupting public security, intimidating the population, influencing decision-making by state bodies of the Republic of Kazakhstan, a foreign state or an international organization, provoking war or complicating international relations, as well as for the purpose of terminating their state or other political activities or out of revenge for such activities;
- an attempt on the life of a person associated with an attack on persons or organizations enjoying international protection, buildings and structures, the taking of a hostage, the seizure of buildings, structures, means of communication and communications, hijacking, as well as the seizure of an aircraft or watercraft, railway rolling stock or other public transport.
Unlike Parts 1, 2 and 3 of Article 255 of the Criminal Code, which provide for liability for the commission of an explosion, arson or other acts creating a danger of loss of human life, causing significant property damage or the occurrence of other socially dangerous consequences, Part 4 of Article 255 of the Criminal Code provides for liability for an attempt on the life of specific persons (as specified therein).
Part 4 of the Article under consideration encompasses all the acts specified therein as qualifying elements; therefore, additional classification under Articles 261 “Taking of Hostages,” 270 “Hijacking, as well as Seizure of an Aircraft or Watercraft or Railway Rolling Stock,” and 200 “Unlawful Taking Possession of a Motor Vehicle or Other Means of Transport Without the Purpose of Theft” is not required.
This crime differs from the murder of a person or their close relatives in connection with the performance by that person of official duties or the fulfillment of a professional or public duty (subparagraph 2) of Part 2 of Article 99 of the Criminal Code) in terms of its object and purpose; from an attempt on the life of the President of the Republic of Kazakhstan (Article 178) — in terms of the object and the position held by the victim; from an attempt on the life of an employee of a law enforcement body, a special state body, a serviceman, a state inspector for the protection of wildlife, an inspector of a specialized wildlife protection organization or a gamekeeper (Article 380-1 of the Criminal Code) — in terms of the object and the position held by the victim; and from an attempt on the life of a person administering justice or conducting a pre-trial investigation (Article 408 of the Criminal Code) — in terms of the object and the position held by the victim. This crime differs from murder in that the object of murder is human life, whereas the object of the crime provided for in Part 4 of Article 255 of the Criminal Code is public security, with human life acting as an additional object. Murder is the unlawful intentional causing of the death of another person, whereas an attempt on life includes not only the unlawful intentional causing of the death of another person but also attempted murder. Murder is considered completed from the moment biological death occurs, whereas an attempt on life is considered completed from the moment the attempt to kill is made, regardless of whether consequences occur.
The part of Article 255 under consideration competes with Articles 178, 380-1 and 408. In relation to this provision, in such cases, pursuant to Part 3 of Article 13 of the Criminal Code, the special provision shall apply, namely Articles 178, 380-1 or 408 of the Criminal Code.
An attempt on life means the intentional unlawful causing of death (murder) or attempted murder, that is, intentional actions directly aimed at causing death.
By its legal construction, the corpus delicti provided for in Part 4 of Article 255 of the Criminal Code of the Republic of Kazakhstan is formal. The crime should be considered completed from the moment the attempt is made, regardless of the consequences.
A state figure is the head of state, heads of state executive and legislative bodies, as well as senior officials of the state apparatus and other high-ranking civil servants. Consequently, state figures include representatives of the Presidential Administration, members of the Government, ministers and their deputies, etc.
Public figures include leaders or prominent members of public associations and political parties. The methods and means of an attempt on the life of a state or public figure may be very diverse and do not affect the classification of this crime.
The decisive factor is not the position held but the political authority of the victim. Liability for an attempt on the life of a state or public figure arises regardless of when the actions that served as the reason for committing the crime were performed. It is not required that the attempt be made precisely at the time when the victim is engaged in state or other political activities.
When classifying an act under Part 4 of Article 255 of the Criminal Code, it is necessary to establish which lawful actions of the victim, connected with the exercise of their state or other political activities, prompted the perpetrator to commit the murder, since an obligatory condition for such classification is the perpetrator's intent to encroach upon the life of that particular person precisely in connection with these circumstances.
An attack is an action directly aimed at achieving a criminal result through the use of violence against the victim or the creation of a real threat of its immediate use.
Categories of persons enjoying international protection:
- heads of states, official representatives and officials of states staying in the territory of a foreign state;
- personnel of diplomatic missions;
- personnel of international organizations;
- consular personnel;
- family members residing together with the above-mentioned persons.
An attack on buildings or structures should be understood as the unlawful entry of the perpetrator into such premises followed by the commission of certain acts. An attack involves entering them, blockading them, shelling them, etc. At the same time, this type of attack may be carried out without the use of physical or psychological violence.
Seizure should be understood as the unlawful taking possession of a building, structure, means of transport or communications.
Taking of a hostage means taking possession of a person followed by restricting their freedom of movement.
Hijacking of an aircraft or watercraft, railway rolling stock or other public transport means unlawful taking possession of the aircraft or rolling stock while it is stationary.
Seizure of an aircraft or watercraft, railway rolling stock or other public transport means unlawful taking possession of the aircraft or rolling stock while it is travelling along its route.
The subjective side of the crime provided for in Part 4 of Article 255 of the Criminal Code is characterized by direct intent and a special purpose or special motive.
The purpose of committing the crime under consideration has criminal-law significance for the classification of an act under Part 4 of Article 255 of the Criminal Code of the Republic of Kazakhstan. Such purposes include disrupting public security, intimidating the population, influencing decision-making by state bodies of the Republic of Kazakhstan, a foreign state or an international organization, provoking war or complicating international relations, as well as an attempt on the life of a state or public figure committed for the same purposes, and for the purpose of terminating their state or other political activities or out of revenge for such activities.
Termination of state activities means the cessation of activities related to the performance of official powers aimed at implementing the tasks and functions of state authority.
Politics is a particular type of activity associated with the participation of social groups, political parties, movements and individuals in the affairs of society and the state.
Political activity encompasses several areas: public administration, the influence of political parties and movements on the course of social processes, political decision-making and political participation.
Termination of political activity means the cessation of activities in the sphere of political and power relations.
An attempt on the life of a person by means of an explosion, arson or other generally dangerous methods, where no special purposes characteristic of an act of terrorism are pursued, should be classified not as terrorism but as the murder of a specific person committed by a method dangerous to the lives of many people, that is, under subparagraph 6) of Part 2 of Article 99 of the Criminal Code.
In this case, if a person attempts on the life of a state or public figure, or an employee of a law enforcement body, a special state body, a serviceman, a state inspector for the protection of wildlife, an inspector of a specialized wildlife protection organization or a gamekeeper, or a person administering justice or conducting a pre-trial investigation, by committing an explosion, arson or other acts of a similar nature for the purpose of influencing decision-making by state bodies of the Republic of Kazakhstan, a foreign state or international organizations, the act committed should be classified under Article 255 of the Criminal Code.
Where an attempt on the life of an employee of a law enforcement body, a special state body, a serviceman, a state inspector for the protection of wildlife, an inspector of a specialized wildlife protection organization or a gamekeeper, as well as a person administering justice or conducting a pre-trial investigation, is committed by the above-mentioned method but without the special purpose characteristic of terrorism, the actions of the perpetrator are subject to classification under Articles 380-1 and 408 of the Criminal Code.
The motive for committing the act of terrorism also has mandatory criminal-law significance. This crime may be committed out of revenge for the state or other political activities of the victim, provided that the purpose of the criminal actions is specifically to terminate such activities.
The motive of revenge for the state or other political activities of the victim consists of the desire to express dissatisfaction with such activities by physically eliminating the state or public figure.
The Note to Article 255 of the Criminal Code establishes the grounds for release from criminal liability in cases of terrorism. Such grounds include timely notification of state bodies about an act of terrorism or other assistance (another method) in preventing an act of terrorism. At the same time, the actions of the perpetrator must not contain the elements of another crime.
The timeliness of the notification is determined by how far in advance the report of the planned terrorist act is made and whether the authorities have a real opportunity to take preventive measures before the act of terrorism begins.
The form and method of notification have no legal significance. It may be made in writing or orally, by telephone, through third parties, etc. However, in this regard, it is important that the perpetrator must be confident that the message will reach its intended recipient.
Another method of preventing terrorism may consist of the person's independent actions to prevent an explosion or arson, involving other citizens in containing harmful consequences, persuading accomplices to abandon their terrorist intentions, warning residents about a planned act of terrorism and indicating the location where it is to be committed, etc.
If a person participated in the preparation or commission of several acts of terrorism, they shall be released from criminal liability only for those acts whose commission they prevented.
The acts provided for in Parts 1 and 2 of Article 255 of the Criminal Code are classified as serious crimes.
The acts provided for in Parts 3 and 4 of Article 255 of the Criminal Code are classified as especially serious crimes.
Commentary of 2021 on the Criminal Code of the Republic of Kazakhstan by Isidor Shamilovich Borchashvili, Honored Figure of Kazakhstan, Doctor of Law, Professor, Academician of the National Academy of Natural Sciences of Kazakhstan, member of the Scientific Advisory Councils under the Constitutional Council of the Republic of Kazakhstan and the Supreme Court of the Republic of Kazakhstan, member of the working group on the reform of the law enforcement system under the Security Council of the Republic of Kazakhstan, Honored Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.
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