Commentary on Article 269. Attack on or Seizure of Buildings, Structures, Means of Communication and Telecommunications, or Other Infrastructure of the Criminal Code of the Republic of Kazakhstan

1. An attack on buildings, structures (including stationary platforms located on the continental shelf of the Republic of Kazakhstan), means of communication and telecommunications, and other infrastructure, as well as the seizure thereof —

shall be punishable by restriction of liberty for a term of three to seven years or imprisonment for the same term.

2. The same acts committed:

1) by a group of persons acting in prior conspiracy;

2) repeatedly;

3) with the use of violence dangerous to life or health;

4) with the use of weapons or objects used as weapons;

5) for mercenary motives or for hire;

6) in respect of buildings belonging to state bodies or state institutions, —

shall be punishable by imprisonment for a term of seven to twelve years, with confiscation of property.

3. The acts provided for in Parts One or Two of this Article, if committed by a criminal group or resulting, through negligence, in the death of a person or other grave consequences, —

shall be punishable by imprisonment for a term of eight to fifteen years, with confiscation of property, with or without deprivation of citizenship of the Republic of Kazakhstan.

The public danger of this crime lies in the fact that it infringes upon public security, creates a threat to the life and health of people, and poses a risk of causing substantial material damage.

The object of the crime is public security. The additional objects are the life and health of citizens, property, the established order of governance, and the normal functioning of an organization.

The subject matter of this crime consists of buildings, structures, and means of communication and telecommunications.

Pursuant to subparagraph 60) of Article 1 of the Law of the Republic of Kazakhstan dated 16 July 2001, “On Architectural, Urban Planning and Construction Activities in the Republic of Kazakhstan,” a building is an artificially created structure consisting of load-bearing and enclosing structures that form a mandatory enclosed above-ground volume and which, depending on its functional purpose, is used for people to live or stay in, for carrying out production processes, as well as for placing and storing material assets. A building may have an underground part.

A structure is an artificially created volumetric, planar or linear object (above-ground, above-water and/or underground, underwater) having natural or artificial spatial boundaries and intended for carrying out production processes, placing and storing material assets, or the temporary presence (movement) of people and cargo, as well as for the placement (installation, laying) of equipment or communications. A structure may also have an artistic and aesthetic, decorative and applied, or memorial purpose (subparagraph 7) of Article 1 of the aforementioned Law).

Subparagraph 57) of Article 2 of the Law of the Republic of Kazakhstan dated 5 July 2004, “On Communications,” defines telecommunications equipment (means of communication) as technical devices, equipment, systems and software that enable the generation, transmission, reception, storage, processing, switching of electromagnetic or optical signals, or the control thereof.

A stationary platform is an oil and gas production facility consisting of a topside structure and a supporting foundation, fixed to the seabed for the entire period of its use and constituting a facility for the development of offshore oil and gas fields.

Pursuant to subparagraph 6) of Article 2 of the Law of the Republic of Kazakhstan dated 16 January 2013, “On the State Border of the Republic of Kazakhstan,” the continental shelf of the Republic of Kazakhstan is a section of the seabed and subsoil measured from the State Border (the outer limit of the territorial waters (sea)) to the limits established by international treaties ratified by the Republic of Kazakhstan.

The objective element of the crime is expressed in the commission of such acts as attacking buildings, structures (including stationary platforms located on the continental shelf of the Republic of Kazakhstan), means of communication and telecommunications, and other infrastructure, as well as seizing them.

An attack on buildings, structures (including stationary platforms located on the continental shelf of the Republic of Kazakhstan), means of communication and telecommunications, and other infrastructure should be understood as the unlawful entry of the perpetrator into such a place, followed by the commission of certain actions. An attack involves entering such facilities, blocking them, shelling them, etc.; such an 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 (including stationary platforms located on the continental shelf of the Republic of Kazakhstan), means of communication and telecommunications, or other infrastructure. Seizure may be carried out either secretly or openly, with or without the use of violence.

Paragraph 25 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” states that, under Article 269 of the Criminal Code, an attack on buildings, structures, means of communication and telecommunications, and other infrastructure should be recognized as the commission by a person of violent acts aimed at taking possession of the specified facilities.

In accordance with Part 1 of Article 269 of the Criminal Code, seizure shall be understood as the unlawful taking possession of a building, structure, means of communication and telecommunications, or other infrastructure. Seizure may be carried out either secretly or openly, with or without the use of violence.

By its legal construction, the corpus delicti is formal. The crime shall be deemed completed from the moment an attack is made on, or a seizure takes place of, a building, structure (including a stationary platform located on the continental shelf of the Republic of Kazakhstan), means of communication and telecommunications, or other infrastructure. Acts that, due to circumstances beyond the perpetrator's control, did not result in the seizure shall be classified as an attempt to commit such a crime.

The subjective element of the crime is characterized by an intentional form of guilt in the form of direct intent. The person is aware that they are committing unlawful acts, foresees the occurrence of socially dangerous consequences and desires their occurrence. The motive and purpose of the crime may be any and do not affect its legal classification.

The subject of the crime is a sane individual who has attained the age of fourteen.

Part 2 of Article 269 of the Criminal Code provides for the following aggravating circumstances: the same acts committed:

• by a group of persons acting in prior conspiracy;
• repeatedly;
• with the use of violence dangerous to life or health;
• with the use of weapons or objects used as weapons;
• for mercenary motives or for hire;
• in respect of buildings belonging to state bodies or state institutions.

An attack on buildings, structures (including stationary platforms located on the continental shelf of the Republic of Kazakhstan), means of communication and telecommunications, and other infrastructure, as well as their seizure, shall be deemed to have been committed by a group of persons acting in prior conspiracy if the persons involved had agreed in advance to commit the said crime jointly.

A person shall be recognized as having repeatedly committed an attack on buildings, structures (including stationary platforms located on the continental shelf of the Republic of Kazakhstan), means of communication and telecommunications, and other infrastructure, or their seizure, if that person has previously committed a similar crime, provided that they have not been released from criminal liability in accordance with the procedure established by law, have not been convicted, or the limitation period for bringing them to criminal liability for such a crime has not expired.

Violence dangerous to life should be understood as violence which, by its objective characteristics, must or may result in the death of the victim. In determining whether violence is dangerous to life, all circumstances of the case must be taken into account: the instruments used to commit the crime, the nature of the violence inflicted, whether the injury was caused to vital organs, the findings of the forensic medical examination, etc.

Violence dangerous to health should be understood as violence that has resulted in or could have resulted in the infliction of serious or moderate harm to the victim's health.

Violence encompasses the infliction of minor or moderate harm to a person's health. If serious harm to a person's health is inflicted, the perpetrator's actions should be classified under Part 3 of the commented Article on the grounds of causing grave consequences.

In the event of intentional homicide, the perpetrator's actions must be classified under the aggregate of crimes provided for in Articles 269 and 99 of the Criminal Code.

The use of weapons means their actual use to cause harm to human life and health.

Other objects used as weapons may include any objects capable of causing harm to a person's health. These include household and domestic items, such as axes, scythes, pitchforks, knives, small shovels, metal rods, pipes, sticks, etc.

The seizure of buildings, structures, means of communication and telecommunications, and other infrastructure for mercenary motives or for hire is characterized by the perpetrator's intention to obtain material benefits (money, property, etc.) or to avoid material expenses (debt, payment for services, etc.). Where buildings, structures, means of communication and telecommunications, or other infrastructure are seized for hire, the perpetrator commits the said acts in the interests of third parties.

Pursuant to subparagraph 25) of paragraph 1 of Article 4 of the Administrative Procedural and Process-Related Code of the Republic of Kazakhstan, state bodies are understood to mean public authorities that, on behalf of the state and on the basis of the Constitution of the Republic of Kazakhstan, its laws and other regulatory legal acts, perform the following functions:

• issuing acts establishing generally binding rules of conduct;
• managing and regulating socially significant public relations;
• monitoring compliance with generally binding rules of conduct established by the state.

An institution shall be recognized as a state institution if its activities are financed from the local or state budget.

Part 3 of Article 269 of the Criminal Code establishes an especially aggravated form of this offence, providing for liability for the acts specified in Parts 1 and 2 of Article 269 of the Criminal Code if they are committed by a criminal group or result, through negligence, in the death of a person or other grave consequences.

When classifying the actions of the perpetrators on the grounds that the act was committed by a criminal group, one should be guided by subparagraph 24) of Article 3 and Part 3 of Article 31 of the Criminal Code.

The legislature links the occurrence of death through negligence during an attack on buildings, structures (including stationary platforms located on the continental shelf of the Republic of Kazakhstan), means of communication and telecommunications, and other infrastructure, or their seizure, to a negligent form of guilt. Other grave consequences should be understood to include the infliction of serious harm to health; the infliction of serious harm to the health of two or more persons; the causing of major or particularly large-scale damage; catastrophes or accidents; and other consequences indicating the severity of the harm caused.

The corpus delicti provided for in Part 3 of Article 269 of the Criminal Code is characterized by two forms of guilt: the perpetrator commits the acts intentionally, while negligence must be established in relation to the consequences in the form of a person's death or other grave consequences.

The crime under consideration differs from hostage-taking (Article 261 of the Criminal Code) in that, under this offence, the subject matter of the crime consists of buildings, structures, means of communication and telecommunications, and other infrastructure, whereas the corpus delicti provided for in Article 261 has no subject matter of the crime but includes a victim — a person taken hostage or held as a hostage.

The acts provided for in Parts 1 and 2 of Article 269 of the Criminal Code are classified as serious crimes.

The act provided for in Part 3 of Article 269 of the Criminal Code is classified as an especially serious crime.

Commentary of 2021 to the Criminal Code of the Republic of Kazakhstan by Isidor Shamilovich Borchashvili, Honoured 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 the reform of the law enforcement system under the Security Council of the Republic of Kazakhstan, Honoured Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.

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