Commentary on Article 258. Financing of Terrorist or Extremist Activities and Other Assistance to Terrorism or Extremism of the Criminal Code of the Republic of Kazakhstan
1. The provision or collection of money and (or) other property, rights to property or benefits of a proprietary nature, as well as gifts, exchanges, donations, charitable assistance, the provision of information and other types of services, or the provision of financial services to an individual or a group of persons, or a legal entity, committed by a person who was knowingly aware of the terrorist or extremist nature of their activities, or that the property provided and the information, financial and other services rendered would be used to carry out terrorist or extremist activities or to support a terrorist or extremist group, a terrorist or extremist organization, or an illegal paramilitary formation, —
shall be punishable by imprisonment for a term of five to nine years, with confiscation of property.
2. The same acts, if committed repeatedly or by a person using their official position, or by a person performing managerial functions in a commercial or other organization, or by a leader of a public association, or by a group of persons acting by prior conspiracy, or on a large scale, —
shall be punishable by imprisonment for a term of seven to twelve years, with confiscation of property.
Note. A person who finances terrorist or extremist activities or otherwise assists terrorism or extremism under the threat of violence and voluntarily reports this fact, and also actively contributes to the detection or prevention of the crime, shall be exempt from criminal liability if their actions do not contain the elements of another crime.
The public danger of this crime lies in the fact that financing extremism or terrorist activities creates a threat of terrorist and extremist acts being committed, gives rise to the danger of loss of human life, the infliction of significant property damage or the occurrence of other socially dangerous consequences, and destabilizes the situation in society.
The object of this crime is public security.
The objective element is expressed in the provision or collection of money and (or) other property, rights to property or benefits of a proprietary nature, as well as gifts, exchanges, donations, charitable assistance, the provision of information and other types of services to persons, or the provision of financial services to an individual, a group of persons or a legal entity, committed by a person who knowingly understood the terrorist or extremist nature of their activities, or that the property provided and the information, financial and other services rendered would be used to carry out terrorist or extremist activities or to support a terrorist or extremist group, a terrorist or extremist organization, or an illegal paramilitary formation.
Paragraph 12) of Article 1 of the Law of the Republic of Kazakhstan dated July 13, 1999, “On Counteracting Terrorism,” defines the financing of terrorism as the provision or collection of money and (or) other property, rights to property or benefits of a proprietary nature, as well as gifts, exchanges, donations, charitable assistance, the provision of information and other types of services, or the provision of financial services to an individual or a group of persons, or a legal entity, committed by a person who was knowingly aware of the terrorist nature of their activities or that the property provided and the information, financial and other services rendered would be used to carry out terrorist activities or to support a terrorist group, a terrorist organization or an illegal paramilitary formation.
Paragraph 3) of Article 1 of the Law of the Republic of Kazakhstan dated February 18, 2005, “On Counteracting Extremism,” defines the financing of extremism as the provision or collection of money and (or) other property, rights to property or benefits of a proprietary nature, as well as gifts, exchanges, donations, charitable assistance, the provision of information and other types of services, or the provision of financial services to an individual or a group of persons, or a legal entity, committed by a person who was knowingly aware of the extremist nature of their activities or that the property provided and the information, financial and other services rendered would be used to carry out extremism or to support an extremist group, an extremist organization or an illegal paramilitary formation.
A similar definition is also provided in paragraph 23 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.”
The financing of terrorism and extremism should also be recognized as the provision or collection of material resources, for example, items of clothing and uniforms, equipment, communication devices, medicinal products, residential or non-residential premises, and vehicles.
The crime is considered completed from the moment the funds are collected, transferred (sent), or services are provided. At the same time, the actual use of the specified assets for the purposes set out in the disposition of Article 258 is not required.
Their provision may be permanent, periodic or one-time. Financing presupposes the existence of a second party — the recipient of the funds — as well as the designated purpose of these funds, namely, the support of terrorist or extremist activities.
Financing begins at the moment when one party transfers or remits funds to the other party.
Other assistance to terrorism or extremism should be understood as providing advice, instructions, information, instruments or means of committing a crime, or removing obstacles to its commission, as well as the prior promise to conceal the perpetrator, the instrument or other means of committing an act of terrorism or extremism, or the traces of such an act.
Terrorist activities are understood as the activities of persons who use terror in their actions, that is, severe intimidation and the instilling of fear in their political opponents, expressed through physical violence, up to and including their destruction.
Paragraph 18) of Article 1 of the Law of the Republic of Kazakhstan “On Counteracting Terrorism” defines terrorist activities as the commission of any of the following acts:
organizing, planning, preparing, financing and carrying out an act of terrorism;
incitement to an act of terrorism;
organizing an illegal paramilitary formation, a criminal community (criminal organization), or an organized group for the purpose of committing an act of terrorism, as well as participation in such structures;
recruiting, arming, training and using terrorists;
providing informational or other assistance in organizing, planning, preparing and committing an act of terrorism;
promoting the ideas of terrorism and disseminating terrorist materials, including through the use of mass media or telecommunications networks;
providing financial or legal assistance or otherwise facilitating the activities of terrorists, as well as organizations whose activities have been recognized as terrorist in accordance with the legislation of the Republic of Kazakhstan, while being aware that such actions will be used to carry out terrorist activities or to support a terrorist organization.
Extremism is understood as adherence to extreme views and measures (usually in politics).
Paragraph 1) of Article 1 of the Law of the Republic of Kazakhstan “On Counteracting Extremism” defines extremism as the organization and (or) commission of:
actions by an individual and (or) legal entity, or an association of individuals and (or) legal entities, on behalf of organizations recognized as extremist in accordance with the established procedure;
actions by an individual and (or) legal entity, or an association of individuals and (or) legal entities, pursuing the following extremist objectives:
the forcible change of the constitutional order, violation of the sovereignty of the Republic of Kazakhstan, the integrity, inviolability and inalienability of its territory, undermining national security and the state's defense capability, the forcible seizure of power or forcible retention of power, the creation, leadership and participation in an illegal paramilitary formation, the organization of an armed rebellion and participation in it, and incitement of social or class discord (political extremism);
incitement of racial, national and tribal discord, including discord associated with violence or calls for violence (national extremism);
incitement of religious hostility or discord, including that associated with violence or calls for violence, as well as the use of any religious practice that poses a threat to the safety of life, health, morality, or the rights and freedoms of citizens (religious extremism).
Extremist actions are the direct implementation of actions for extremist purposes, including public calls to commit such actions, propaganda, agitation and the public display of symbols of extremist organizations (paragraph 5) of Article 1 of the Law).
A gift is the gratuitous transfer of one's property or any item to another person for full ownership. Gifts can often be made without drawing up any documents (Chapter 27 of the Civil Code).
An exchange is a type of civil-law contract under which the parties exchange one item of property for another. Upon performance of the exchange contract, each party loses ownership of the property transferred and acquires ownership of the property received (Chapter 26 of the Civil Code).
A donation is the gifting of a thing or a right for generally beneficial purposes (Article 516 of the Civil Code).
Charitable assistance is the voluntary activity of citizens and legal entities involving the gratuitous transfer or transfer on preferential terms of property, including monetary funds, to citizens or legal entities, the selfless performance of work, the provision of services, and the provision of other support.
In accordance with paragraph 26) of Article 1 of the Law of the Republic of Kazakhstan dated November 24, 2015, “On Informatization,” an information and communication service is a service or a set of services involving the property rental (lease) and (or) placement of computing resources, the provision of software, software products, service software products and technical equipment for use, including communication services through which the functioning of these services is ensured.
Financial services are financial intermediation services, including banking, investment, insurance, leasing and factoring services, as well as various forms of lending.
The criminal nature of such acts lies in the fact that material resources, monetary funds, property and rights to property are transferred or collected, and actions of a proprietary nature are performed for the purpose of carrying out terrorist or extremist activities or supporting a terrorist or extremist group, a terrorist or extremist organization, or an illegal paramilitary formation.
A terrorist group is an organized group pursuing the objective of committing one or more terrorist crimes (paragraph 31) of Article 3 of the Criminal Code).
Terrorist crimes are recognized as acts provided for in Articles 171, 173, 177, 178, 184, 255, 256, 257, 258, 259, 260, 261, 269 and 270 of the Criminal Code.
An extremist group is an organized group pursuing the objective of committing one or more extremist crimes (paragraph 40) of Article 3 of the Criminal Code).
The word “extremism,” translated from Latin, means “adherence to extreme views and measures.” The exhaustive list of extremist crimes is established in paragraph 39) of Article 3 of the Criminal Code: these are acts provided for in Articles 174, 179, 180, 181, 182, 184, 258, 259, 260, 267, 404 (Parts 2 and 3) and 405 of the Criminal Code.
It should be borne in mind that the acts provided for in Article 184, “Sabotage”; Article 258, “Financing of Terrorist or Extremist Activities and Other Assistance to Terrorism or Extremism”; Article 259, “Recruitment, Training or Arming of Persons for the Purpose of Organizing Terrorist or Extremist Activities”; and Article 260, “Undergoing Terrorist or Extremist Training,” of the Criminal Code are classified as both extremist and terrorist crimes.
A terrorist organization is an organization that carries out terrorist activities or recognizes the possibility of using terrorism in its activities, in respect of which a court decision recognizing it as terrorist has been adopted and has entered into legal force (paragraph 17) of Article 1 of the Law “On Counteracting Terrorism”).
An extremist organization is a legal entity or an association of individuals and (or) legal entities that engages in extremism and has been recognized as extremist by a court (paragraph 9) of Article 1 of the Law “On Counteracting Extremism”).
An illegal paramilitary formation is a formation (association, detachment, unit or other group consisting of three or more persons) not provided for by the legislation of the Republic of Kazakhstan, having an organizational structure of a paramilitary type, unity of command, combat capability and strict discipline (paragraph 18) of Article 3 of the Criminal Code).
By its legal structure, the corpus delicti is formal. Since liability for financing terrorist or extremist activities arises from the moment the funds are collected, the crime is considered completed regardless of whether those funds reached the recipient or were used for their intended purpose; in the case of the provision of information, financial and other services, the crime is completed from the moment the service is provided.
From the subjective standpoint, the act is characterized by guilt in the form of direct intent. The person is aware of the socially dangerous nature of their actions in financing extremism or terrorist activities, foresees the possibility or inevitability of socially dangerous consequences and desires their occurrence.
The subject is a sane individual who has reached the age of 16.
Part 2 of Article 258 of the Criminal Code establishes liability for the same acts committed repeatedly, or by a person using their official position, or by a person performing managerial functions in a commercial or other organization, or by a leader of a public association, or by a group of persons acting by prior conspiracy, or on a large scale.
Repeated financing should be understood as the commission of two or more of the specified acts, provided that the person has not been released from criminal liability in accordance with the procedure established by law for previously committed financing of extremism or terrorist activities, the limitation periods for bringing criminal charges have not expired, or the person has not been convicted of a previously committed similar act.
It does not matter where the terrorist activities were carried out or are intended to be carried out: within the territory of the Republic of Kazakhstan or beyond its borders, nor does it matter whether the funds are provided for the commission of a specific terrorist act or for the purpose of ensuring the functioning of a terrorist organization (regular contributions or a one-time contribution to the general fund of a single terrorist or extremist organization, provided that they are covered by a single intent; the purchase of real estate or payment of rental costs for its activities; the provision of funds intended for bribing officials, purchasing weapons, explosives and explosive devices, etc.).
The definition of the concept of “a person performing managerial functions in a commercial or other organization” is provided in paragraph 19) of Article 3 of the Criminal Code of the Republic of Kazakhstan (see the commentary to Article 250 of the Criminal Code).
A large amount means a sum of money or the value of property, benefits of a proprietary nature or services provided exceeding one thousand monthly calculation indices (paragraph 38) of Article 3 of the Criminal Code).
The characteristics of other elements are provided in the commentary to Articles 256 and 257 of the Criminal Code.
According to the note to Article 258 of the Criminal Code, exemption from criminal liability is possible only if the following conditions are met:
the financing of terrorist or extremist activities or other assistance to terrorism or extremism was carried out under the threat of violence;
the person voluntarily reported this fact;
- the person actively contributed to the detection or prevention of the crime;
their actions do not contain the elements of another crime.
The acts provided for in Parts 1 and 2 of Article 258 of the Criminal Code are classified as 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 Kazakhstan National Academy of Natural Sciences, 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 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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