Commentary on Article 259. Recruitment, Training or Arming of Persons for the Purpose of Organizing Terrorist or Extremist Activities of the Criminal Code of the Republic of Kazakhstan
1. Recruitment, training or arming of persons for the purpose of organizing terrorist or extremist activities —
shall be punishable by imprisonment for a term of eight to twelve years, with confiscation of property.
2. The same act committed by a person using their official position or against a minor —
shall be punishable by imprisonment for a term of ten to fifteen years, with confiscation of property.
The public danger of this crime lies in the fact that it poses a threat to public security, creates a risk of terrorist acts being committed, and gives rise to the danger of loss of human life, the infliction of significant property damage, or the occurrence of other socially dangerous consequences.
The object of this crime is public security.
The objective aspect of the crime is expressed in the recruitment, training or arming of persons for the purpose of organizing terrorist or extremist activities.
Recruitment of a person should be understood as intentional actions involving the selection, hiring or engagement by agreement, persuasion and involvement of volunteers for their participation in terrorist or extremist activities in exchange for material remuneration. Recruitment begins with the search for candidates, followed by psychological influence exerted on them by any means (persuasion, blackmail, promises) for the purpose of organizing terrorist or extremist activities, and ends with the conclusion of an agreement. Recruitment should also include actions aimed at arousing a desire to participate in the commission of one or more crimes, accompanied by the use of physical or psychological coercion, as well as incitement to participate in the commission of terrorist and extremist crimes. The terms of recruitment may be established either in writing (in the form of an agreement) or orally.
Recruitment is a transaction, and in order to recognize it as having taken place, it is necessary to establish the existence of any agreement between the parties on all essential terms, regardless of the form in which such agreement was concluded. Thus, recruitment should be considered completed from the moment the recruiter receives the person's consent to participate in terrorist or extremist activities. The fact that the recruited person received remuneration or actually participated in terrorist or extremist activities is of no legal significance.
Training is the provision to a person of knowledge, abilities and skills of a military nature, as well as psychological, including ideological, influence exerted on that person in a certain manner for the purpose of preparing them for direct participation in terrorist or extremist activities. Training consists of conducting special classes with that person on the most effective and appropriate methods of applying and using weapons, armaments, military equipment, combat tactics, as well as teaching combat techniques and other related skills.
Training should be considered a completed crime from the moment its commission begins, that is, from the moment the transfer of relevant knowledge, abilities and practical skills to at least one trainee begins, regardless of the duration and whether the training has been completed in accordance with its intended purpose.
Arming means equipping persons with a range of technical means, weapons, ammunition, explosives and explosive devices intended to destroy manpower and infrastructure facilities, whether for mercenary motives or free of charge. The crime is considered completed from the moment the person is provided with weapons.
Paragraph 24 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,” also explains the concepts of “recruitment,” “training” and “arming”:
“Recruitment (Part One of Article 259 of the Criminal Code) should be understood as intentional actions aimed at organizing terrorist or extremist activities by forming in a particular person (group of persons) a desire (intention, aspiration) and readiness to participate in the commission of a terrorist or extremist crime. In particular, this includes searching for and involving persons in terrorist or extremist activities, conducting propaganda work, including persons on a list for preparation for training, and other actions. At the same time, the actions of the recruiter must be active in nature and may be accompanied by the use of psychological or physical coercion.
Recruitment may be carried out in various ways, for example, through persuasion, convincing, requests, proposals, threats, intimidation, beatings, bribery, deception, arousing feelings of revenge, envy and other base motives, assuring a person of impunity, or promising payment for committed acts of terrorism. Recruitment should be considered a completed criminal offense from the moment the above-mentioned actions are committed, regardless of whether the person concerned has committed a terrorist and/or extremist-related crime.
Training consists of instructing recruited persons in the rules for handling weapons, ammunition, explosive devices, explosives, radioactive substances, nuclear materials, military equipment and communications equipment, as well as the rules of conducting combat operations. It also includes conducting relevant briefings, drills, shooting exercises, military exercises and other activities for the purpose of organizing terrorist or extremist activities in any form.
Arming, within the meaning of Part One of Article 259 of the Criminal Code, means providing persons with weapons of any type for participation in terrorist or extremist activities.”
The definition of terrorist activity is provided in Subparagraph 18) of Article 1 of the Law of the Republic of Kazakhstan “On Countering Terrorism” (see the commentary on Article 258 of the Criminal Code of the Republic of Kazakhstan).
The list of terrorist crimes is established in Subparagraph 30) of Article 3 of the Criminal Code.
Subparagraph 1) of Article 1 of the Law of the Republic of Kazakhstan “On Countering Extremism” provides the definition of the concept of “extremism” (see the commentary on Article 258 of the Criminal Code of the Republic of Kazakhstan).
The concept of an extremist group and the list of extremist crimes are established in Subparagraphs 40) and 39) of Article 3 of the Criminal Code of the Republic of Kazakhstan (see the commentary on Article 258 of the Criminal Code of the Republic of Kazakhstan).
The list of extremist crimes is established in Subparagraph 39) of Article 3 of the Criminal Code.
It should be noted that the acts provided for in Articles 184, 258, 259 and 260 of the Criminal Code have been classified by the legislator as both extremist and terrorist crimes.
The subjective aspect is characterized by an intentional form of guilt in the form of direct intent. The person realizes that they are recruiting, training or arming persons for the purpose of organizing terrorist or extremist activities, foresees the possibility or inevitability of socially dangerous consequences and desires to commit such actions.
An obligatory element of the subjective aspect is the special purpose of organizing terrorist or extremist activities.
The subject of the crime is a sane natural person who has reached the age of 16.
Part 2 of Article 259 of the Criminal Code of the Republic of Kazakhstan establishes criminal liability for the same act committed by a person using their official position or against a minor.
A person's use of their official position includes not only the exercise by the perpetrator of official powers arising from the rights and duties vested in that person by virtue of their official status. The use of official position also allows for the use of official connections, the authority of the position held and other factors that do not fall within the definition of the exercise of official powers. Therefore, the use of official position associated with the exercise of official duties primarily means abusing one's official position, deriving advantages and benefits from one's official powers established by law or another regulatory legal act, or using official connections and the authority of one's position, regardless of the nature of the service (state or non-state). The choice of the method of using official position depends on the actual capabilities of the perpetrator.
A person using their official position should be understood to include not only officials, but also any persons who use their official position, including persons performing managerial functions in a commercial or other organization.
Pursuant to the rule governing the competition between general and special legal provisions, in such cases additional classification of the perpetrator's actions under articles providing for liability for corruption-related and other criminal offenses against the interests of public service and public administration, or criminal offenses against the interests of service in commercial and other organizations, is not required.
Another qualifying element is the commission by a person of recruitment, training or arming in respect of a minor, that is, a person who has not reached the age of 18.
The perpetrator must know that they are recruiting, training or arming a minor.
The act provided for in Part 1 of Article 259 of the Criminal Code is classified as a serious crime.
The act provided for in Part 2 of Article 259 of the Criminal Code is classified as an especially serious crime.
Commentary to the Criminal Code of the Republic of Kazakhstan, 2021, 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 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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