Commentary on Article 267. Organization of an Illegal Paramilitary Formation of the Criminal Code of the Republic of Kazakhstan

1. The creation of an illegal paramilitary formation, as well as leadership of such a formation —

shall be punishable by imprisonment for a term of two to seven years.

2. Participation in an illegal paramilitary formation —

shall be punishable by a fine in the amount of up to three thousand monthly calculation indices, or corrective labor in the same amount, or community service for a term of up to eight hundred hours, or restriction of liberty for a term of up to three years, or imprisonment for the same term.

Note. A person who voluntarily ceases participation in an illegal paramilitary formation and surrenders weapons and military equipment shall be exempt from criminal liability if their actions do not contain the elements of another criminal offense.

The public danger of the functioning of armed formations in a state that are not controlled by government authorities lies in the fact that this violates stability and the balance between the various branches and levels of government. A threat arises of resolving issues of state-building and government through unconstitutional and violent means, while the uncontrolled actions of a significant number of armed individuals generate social tension in society, which carries a potentially high risk of causing harm to individuals, human casualties, and serious material damage.

The object of this crime is public safety.

The objective element is expressed in the performance of such actions as the creation of an illegal paramilitary formation and leadership of such a formation.

The main characteristic of this crime is the illegality of the paramilitary formation. The illegality of the formation consists in the absence of regulation by normative legal acts governing the creation of such a formation.

Pursuant to paragraph 3 of Article 5 of the Constitution of the Republic of Kazakhstan, the creation of paramilitary formations not provided for by legislation is prohibited. Lawful paramilitary formations include, for example, the Armed Forces of the Republic of Kazakhstan, national security authorities, internal affairs bodies, customs authorities, etc.

In accordance with subparagraph 18) of Article 3 of the Criminal Code, an illegal paramilitary formation is a formation (association, detachment, militia unit or other group consisting of three or more persons) not provided for by legislation, which has an organizational structure of a paramilitary nature, unity of command, combat capability, and strict discipline.

A formation is a newly organized military group, a militia military unit, or an organization (collective).

Thus, armed formations include associations, detachments, militia units, or other groups. In this case, the reference is not to formalized concepts and names characteristic of lawful armed formations, but to associations of armed persons of various sizes.

An association is a large formation within whose structure other organizational units of the intermediate level (a detachment, militia unit, etc.) may be included.

A group is a local association of persons established to accomplish one or several specific tasks.

The creation of an illegal paramilitary formation means the performance of actions leading to the establishment of such a formation. These may include recruiting members of the formation, determining deployment locations, providing weapons, uniforms, transport and communications, assigning functional duties, determining the leadership and command personnel, dividing the formation into combat units, establishing the goals and objectives of the formation, etc.

Leadership of an illegal formation means managing an already established illegal formation. Such leadership may be exercised through actions including organizing duty service, ensuring interaction between units, issuing orders and instructions to achieve the goals and accomplish the tasks of the formation, as well as monitoring their execution, etc.

However, it should be borne in mind that the quantitative criterion is not decisive. The decisive criterion is the qualitative one, which includes hierarchy, stability, professionalism, as well as the armament of the formation.

Hierarchy means the presence of:

an internal structure — relationships between management levels and functional levels of the illegal paramilitary formation. The structure is closely related to the specific division of labor characteristic of it and the requirements for establishing a control system;

a management system — a system of existing formal rules and procedures, mandatory for compliance, which determine the nature, conditions and procedure of the activities of the illegal paramilitary formation and control over such activities;

subordination — a system of subordination regulated by the distribution of rights and duties within the illegal paramilitary formation;

distribution of roles — determination of the contribution of individual members to the activities of the illegal paramilitary formation and the relationships between members of the criminal formation;

specific rules of communication — a system of military etiquette rules governing the particularities of relations between members of the illegal paramilitary formation in accordance with their status;

a prepared plan — a document covering all types of activities of the illegal paramilitary formation for a specified period, after the completion of which the plan for the next period comes into effect.

The characteristic of stability of a formation is always specific to the particular current moment. It should be borne in mind that large formations do not maintain a constant membership throughout their existence, as replenishment or planned replacement of personnel may take place. Depending on the purposes for which an illegal armed formation is created, its financing and technical equipment, the socio-political situation in a particular region, as well as the effectiveness of law enforcement agencies, the period of existence of an illegal armed formation may also be short.

The characteristic of professionalism consists in the presence of:

• service discipline;
• military training, including firearms, tactical, drill and physical training;
• technical equipment and training.

Armament should be understood as the possession by members of the formation of weapons, that is, devices and objects structurally designed to damage a living or other target. In this regard, weapons should be understood as devices and objects intended to damage a living or other target, classified as weapons 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.

In accordance with the current legislation, armament should be understood as the possession by members of an illegal armed formation (all or the majority of them) of civilian, service and military small arms, ammunition, explosives and explosive devices. In this regard, it does not matter whether all these types of weapons and equipment are factory-made or homemade, domestically or foreign-produced. The possession by members of an illegal armed formation of weapon replicas or weapons unsuitable for their intended use does not constitute the characteristic of armament of such a formation.

The possession by members of an illegal formation of objects having the properties of weapons or used as weapons does not constitute the characteristic of armament of the formation.

The possession by members of an illegal armed formation of defective or training weapons shall constitute the characteristic of armament of that formation only if such weapons have components suitable for use or if the members of the formation intended to bring them into usable condition and performed certain actions for that purpose.

During the investigation of specific criminal cases, the issue of armament may be resolved only taking into account all the circumstances of the case and the conclusions of relevant (ballistic) examinations, which are appointed, where necessary, in accordance with criminal procedure. At the same time, the illegal acquisition, storage, transportation, use, transfer, processing, destruction, dispersion or burial of radioactive substances, radioactive waste or nuclear materials, as well as the acquisition, transfer, sale, storage, transportation or carrying of weapons, ammunition, explosives and explosive devices, shall be classified respectively under Articles 283 and 287 of the Criminal Code.

The creation of an illegal paramilitary formation, as well as leadership of such a formation by a person who, in doing so, uses their official powers contrary to the interests of the service for the purpose of obtaining benefits and advantages for themselves or other persons or organizations, or causing harm to other persons or organizations, shall be classified cumulatively under Articles 267 and 361 of the Criminal Code.

The illegality of armed formations means their organization in violation of the legislation of the Republic of Kazakhstan governing the procedure for the creation and activities of armed structures, their subordination and accountability.

By its construction, the elements of the crime are formal. The crime in the form of creating an illegal paramilitary formation is considered completed from the moment the formation is actually established, that is, from the moment several persons unite into a group and at least some of them acquire weapons, ammunition or explosive devices. Leadership of an illegal formation is considered completed from the moment a person is appointed commander of the formation, chief of staff, or another leader.

The subjective element of the crime is characterized by intentional guilt in the form of direct intent. The person is aware that they are creating an illegal paramilitary formation or leading it, foresees the occurrence of socially dangerous consequences or their inevitability, and desires their occurrence.

The subject of this crime is a sane individual who has reached the age of 16. In this case, such person must be the organizer or leader of the illegal paramilitary formation.

Part 2 of Article 267 of the Criminal Code provides for criminal liability for participation in an illegal paramilitary formation. Participation should be understood as the performance by the offender of actions aimed at the functioning of the illegal formation. Such actions may include performing internal duty, guard duty, being on watch, etc.

Acceptance of an oath, giving consent, receiving a uniform, weapons, etc., should be regarded as participation in an illegal armed formation.

The crime in the form of a person's participation in an illegal armed formation should be considered completed from the moment specific actions are performed to ensure the activities of the illegal armed formation.

Persons who take the initiative to join an established illegal armed formation, where their efforts have not resulted in the desired outcome, shall be held liable under Part 3 of Article 24 and Part 2 of Article 267 of the Criminal Code.

When members of an illegal armed formation commit a specific terrorist crime, or any other crime, their actions shall be classified cumulatively under Part 2 of Article 267 of the Criminal Code and the relevant articles of the Criminal Code (for example, Articles 255, 256 and 259).

If individual members of illegal formations unite into a stable armed group (gang) for the purpose of attacking citizens and organizations (including for the purpose of engaging in terrorist activities), lead such a group (gang), or participate in its attacks, their actions must be classified cumulatively under Articles 267 and 268 of the Criminal Code.

If a person, without being a member of an illegal armed formation, carries out individual requests or assignments of the leader or any of the members of that armed formation, their actions should be regarded as aiding the activities of the illegal armed formation, provided that the person is reliably aware that they are assisting an illegal armed formation and that such assistance is of a one-time, episodic nature.

The subjective element is characterized by an intentional form of guilt and only direct intent. The person is aware that they are participating in the activities of an illegal paramilitary formation, foresees the possibility or inevitability of socially dangerous consequences, and desires their occurrence.

The subject of the crime provided for in Part 2 of Article 265 of the Criminal Code of the Republic of Kazakhstan is a sane individual who has reached the age of 16. In this case, such person must be an ordinary member of the illegal paramilitary formation.

The organization of an illegal armed formation and participation in it should be distinguished from armed rebellion provided for in Article 181 of the Criminal Code. The difference lies in the subjective and objective elements of the crime. Armed rebellion presupposes the existence of a purpose and actions directly aimed at overthrowing or changing the constitutional order, or violating the unitary nature and territorial integrity of the Republic of Kazakhstan, as well as the inviolability and inalienability of its territory, or seizing and retaining power. These do not form part of the subjective and objective elements of the creation of an illegal paramilitary formation. In cases involving the organization of an illegal paramilitary formation and armed rebellion, the act shall be classified cumulatively under Articles 267 and 181 of the Criminal Code.

If an armed formation is initially created for the purpose of overthrowing or changing the constitutional order, or violating the unitary nature and territorial integrity of the Republic of Kazakhstan, as well as the inviolability and inalienability of its territory, or seizing or retaining power, it is sufficient to classify the actions of the organizers and active members of such illegal armed formation solely under Article 181 of the Criminal Code.

Pursuant to the Note to Article 267 of the Criminal Code of the Republic of Kazakhstan, a person who voluntarily ceases participation in an illegal paramilitary formation and surrenders weapons and military equipment shall be exempt from criminal liability if their actions do not contain the elements of another crime.

Persons who have surrendered weapons and military equipment should be understood as members of illegal armed formations who have handed over to state authorities the weapons and military equipment in their possession or indicated the place where they are stored.

A member of an illegal armed formation who does not possess weapons or military equipment shall be exempt from criminal liability on the grounds that they voluntarily ceased participation in the illegal armed formation and notified the state authorities thereof.

The application of the Note does not extend to the leader of an illegal paramilitary formation, based on the literal interpretation of the wording of the Note.

If the organizer leaves the illegal armed formation, this may be considered a mitigating circumstance.

The act provided for in Part 1 of Article 267 of the Criminal Code is classified as a serious crime.

The act provided for in Part 2 of Article 267 of the Criminal Code is classified as a crime of medium gravity.

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 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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