Commentary on Article 266. Financing the Activities of a Criminal Group, as well as the Storage and Distribution of Property and the Development of Financing Channels 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 property-related nature, as well as gifts, exchanges, donations, charitable assistance, the provision of information and other services, or the provision of financial services to an individual, a group of individuals, or a legal entity, committed by a person who knowingly understands that they will be used to support an organized group, criminal organization, criminal community, transnational organized group, transnational criminal organization, transnational criminal community, or gang, —

shall be punishable by deprivation of liberty for a term of three to seven years, with confiscation of property.

2. The storage and distribution of property, as well as the development of financing channels, committed by a member of a criminal group, —

shall be punishable by deprivation of liberty for a term of five to ten years, with confiscation of property.

3. The acts provided for in Parts One or Two of this Article, committed by a person through the use of their official position, or by a person performing managerial functions in a commercial or other organization, or by a leader of a public association, —

shall be punishable by deprivation of liberty for a term of seven to twelve years, with confiscation of property and deprivation of the right to hold certain positions or engage in certain activities for a term of seven to ten years.

Note. A person who financed the activities of a criminal group under the threat of violence and voluntarily reported this fact shall be exempt from criminal liability if their actions do not contain the elements of another criminal offense.

The activities of a criminal group require financing. In most cases, the source of such financing is criminal activity carried out either by the criminal groups themselves or in cooperation with other criminal groups. Criminal groups engage in a wide variety of criminal activities to finance their operations — ranging from local crimes to the illegal trade in expensive goods on a transnational scale. Criminal groups have been attracted to the illegal drug trade because of the high value of this commodity. In addition, there is substantial evidence that criminal groups are involved in the illegal circulation of diamonds and cigarettes, human trafficking, trade in human organs, toxic and industrial waste, and counterfeit products.

The public danger of this crime lies in the fact that financing the activities of a criminal group creates conditions for the existence and prosperity of a group whose activities are aimed at carrying out organized criminal activities.

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 property-related nature, as well as in gifts, exchanges, donations, charitable assistance, the provision of information and other services, or the provision of financial services to an individual, a group of individuals, or a legal entity, where such actions are committed by a person who knowingly understands that these resources and services will be used to support an organized group, criminal organization, criminal community, transnational organized group, transnational criminal organization, transnational criminal community, or gang.

Material resources, property, and assistance may be provided to an individual, a group of individuals, or a legal entity.

For the concept of financing the activities of a criminal group, see the commentary to Article 258 of the Criminal Code.

According to subparagraph 7) of Article 3 of the Criminal Code, a gang is an organized group pursuing the purpose of attacking citizens or organizations with the use of weapons or objects used as weapons, or the threat of their use.

The concept and characteristics of criminal groups are examined in the commentary to Articles 262–265 and 268 of the Criminal Code.

By its construction, the corpus delicti is formal. The crime shall be considered completed from the moment the person provides or collects money and (or) other property, rights to property or benefits of a property-related nature, as well as from the moment of making a gift, exchange, donation, providing charitable assistance, or rendering information, financial, or other services to an individual, a group of individuals, or a legal entity, regardless of whether any socially dangerous consequences occur.

From the subjective side, the act is characterized by guilt in the form of direct intent, expressed in the person's awareness of the socially dangerous nature of their actions in financing the activities of a criminal group, anticipation of the possibility or inevitability of socially dangerous consequences, and desire for their occurrence. The disposition of this provision expressly indicates that criminal liability arises for an act committed by a person who knowingly understood that the money and (or) other property, rights to property or benefits of a property-related nature would be used to support an organized group, criminal organization, criminal community, transnational organized group, transnational criminal organization, transnational criminal community, or gang.

The subject is a sane individual who has reached the age of 16.

Part 2 of Article 266 of the Criminal Code provides for liability for the storage and distribution of property, as well as the development of financing channels.

Storage means actual possession, keeping property secure in a specially adapted place, and ensuring its preservation. The storage of property constitutes a continuing crime.

Distribution means dividing property and providing each person with a certain portion of it.

The development of financing channels should be understood as a thorough and comprehensive examination of methods and ways of obtaining funds.

By its construction, the corpus delicti is formal. The crime shall be considered completed from the moment any of the actions specified in Part 2 of the commented Article is committed.

The subject is a member of a criminal group, a sane individual who has reached the age of 16.

Part 3 of Article 266 of the Criminal Code provides for particularly qualified types of this crime:

• acts committed by a person through the use of their official position (see the commentary to Article 256 of the Criminal Code);
• acts committed by a person performing managerial functions in a commercial or other organization (see the commentary to Article 258 of the Criminal Code);
• acts committed by a leader of a public association (see the commentary to Article 256 of the Criminal Code).

Officials of various ranks and levels may take advantage of their official positions and engage in such acts without facing a particularly high risk of being exposed, since, owing to the positions they hold, they have greater opportunities to conceal traces of criminal activity, legalize criminal proceeds, and so forth. This significantly increases the degree of public danger of the acts they commit, which has been taken into account by the legislator.

According to the Note to Article 266 of the Criminal Code, exemption from criminal liability is possible only if the following conditions are met:

• the financing of the activities of a criminal group was carried out under the threat of violence;
• the person voluntarily reported this fact;
• the person's actions do not contain the elements of another criminal offense.

The acts provided for in Parts 1, 2, and 3 of Article 266 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 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 Worker of the Ministry of Internal Affairs of the Republic of Kazakhstan.

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