Commentary on Article 27. The Concept of Complicity in a Criminal Offense under the Criminal Code of the Republic of Kazakhstan

Complicity in a criminal offense shall be recognized as the intentional joint participation of two or more persons in the commission of an intentional criminal offense.

The majority of the provisions of the Special Part of the Criminal Code provide for the liability of one person for the commission of a criminal offense. However, in judicial and investigative practice, situations frequently arise in which an act is committed not by one person, but by two or more persons.

As a rule, the public danger of a criminal offense committed by several persons is greater than the public danger of an offense committed by one person. Such cases are assessed by law and judicial practice as complicity in a criminal offense. When a criminal offense is committed through complicity, both the public danger of the criminal offense and the public danger posed by the personalities of all accomplices increase. At the same time, the nature of the criminal offense changes. In cases of complicity, the factors restraining human behavior become weaker, and readiness to engage in decisive antisocial actions develops more rapidly.

It should be borne in mind that certain crimes can be committed only by bringing together several persons: banditry, the creation and leadership of a criminal community, as well as participation therein, armed rebellion, and others.

The Criminal Code of the Republic of Kazakhstan does not provide for any other grounds of criminal liability for complicity in comparison with criminal offenses committed individually. The basis for criminal liability is the commission of a criminal offense, that is, an act containing all the elements of the corpus delicti of a crime or criminal misdemeanor provided for by the Special Part of the Criminal Code (Article 4 of the Criminal Code). The elements of any criminal offense reflect the characteristics of the external and internal properties of the criminal offense.

This principle remains unchanged when applied to the grounds of criminal liability for criminal offenses committed through complicity. However, depending on the types of accomplices, forms and types of complicity, certain specific features through which the significance of the institution of complicity is expressed should be taken into account.

The institution of complicity constitutes part of the entire system of criminal law provisions and, undoubtedly, is subject to the purposes, objectives and principles of criminal law, as generally determined by the provisions of the General Part of the Criminal Code of the Republic of Kazakhstan.

In accordance with Article 27 of the Criminal Code, complicity in a criminal offense shall be recognized as the intentional joint participation of two or more persons in the commission of an intentional criminal offense. Complicity in a criminal offense can occur only when an intentional criminal offense is committed; therefore, the commission of a criminal offense by several persons through negligence cannot be regarded as the commission of a criminal offense by a group of persons.

The legislative definition of complicity incorporates its objective and subjective elements. Objective elements characterize the manifestation of complicity in objective reality, while subjective elements reflect its internal content, that is, they characterize the existing psychological interrelationship between the participants in a jointly committed socially dangerous unlawful act. The definition of complicity distinguishes four objective elements and two subjective elements.

The first objective element of complicity is quantitative, meaning the participation of two or more persons. A criminal offense committed individually can never be recognized as having been committed through complicity. Complicity in a criminal offense can be discussed only where it is committed by at least two persons. The content of the quantitative element of complicity comes down to the fact that the two or more persons specified in the definition must possess the characteristics of a subject of a criminal offense, that is, they must be physically capable, sane persons who have reached the age at which criminal liability arises for the particular act.

An act intentionally committed jointly with a person who has not reached the age at which criminal liability arises for the relevant type of criminal offense, or with a person declared legally insane, cannot be regarded as an act committed by a group of persons upon prior conspiracy.

For most cases of complicity, the presence of several persons is sufficient; however, certain forms of complicity require a considerable number of accomplices, for example, the organization of an illegal paramilitary formation (Article 267 of the Criminal Code) and mass riots (Article 272 of the Criminal Code).

The second objective element of complicity indicates that it constitutes not merely participation, but joint participation. Therefore, a socially dangerous unlawful act carried out at the same time and in the same place by two or more persons who did not combine their efforts to achieve a socially dangerous objective, but each acted independently, shall not be recognized as having been committed through complicity. At the same time, the joining of one person's efforts to the already commenced socially dangerous activity of another person constitutes complicity. The Supreme Court of the Republic of Kazakhstan also shares this position. Thus, paragraph 2 of clause 5 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated June 21, 2001, “On Certain Issues of the Application by Courts of Legislation on Liability for Banditry and Other Criminal Offenses Committed through Complicity,” states: “In cases where certain participants in a criminal offense commit a criminal offense upon prior conspiracy and, before the completion of the objective elements of the offense, other persons join them upon prior conspiracy, the actions of both the former and the latter shall be classified as the commission of a criminal offense by a group of persons upon prior conspiracy.” For example, if a person, taking advantage of the absence of a salesperson in a department, steals goods and, in order to take them out, asks another person for assistance, promising to share the stolen property, the actions of these persons constitute complicity.

The joint nature of participation means the combining of the actions of accomplices, whereby each of them makes certain efforts to achieve one socially dangerous result common to all.

The word “jointness” in the Russian language denotes activity or conduct carried out “together” with someone, and the combining of actions with other persons (Ozhegov S.I., Shvedova N.Yu. Explanatory Dictionary of the Russian Language. Moscow, 1997. p. 767).

The third objective element of complicity is the existence of a common, unified socially dangerous result for all accomplices. The consequence that has occurred in the form of causing a particular type of harm must be the result of the joint socially dangerous activity of two or more persons. Each of them contributes their own “share” or “contribution” toward achieving the common result.

The fourth objective element of complicity is expressed in the existence of a direct and necessary causal relationship between the act of each accomplice and the occurrence of a common, unified socially dangerous result for all accomplices. This element means that the actions of the organizer, instigator and aider precede, in time, the commission of the socially dangerous act by the perpetrator and are in an interdependent and mutually conditioned relationship both with one another and with the actions of the perpetrator, and therefore naturally lead to the occurrence of a result common to all accomplices.

Any human behavior, including the joint activity of several persons, represents a unity of the objective and the subjective. Objective elements are closely interconnected with subjective elements, which becomes particularly evident when determining the content of the intent of accomplices. Each accomplice must be aware of the socially dangerous nature of their actions, expressed in the creation, under the specific circumstances, of the necessary conditions for the activities of the perpetrator and other persons involved in the case, and must foresee the possibility or inevitability of the consequences desired or permitted by them as a result of their joint activity. In addition, each accomplice knows that their actions constitute one of the necessary conditions for the perpetrator's commission of the criminal offense and are therefore causally interconnected with it.

If a particular person appears after the crime has been committed, that person could not have facilitated the commission of the crime; therefore, their actions cannot be considered the cause of the criminal consequence that has occurred. Thus, a person may join the commission of a crime as an accomplice only before its commission, at the stage of preliminary criminal activity, or during the execution of the crime, but before its actual completion.

The subjective elements of complicity include:

— unity of intent among all accomplices, since the matter concerns the joint participation of two or more persons;

— the possibility of complicity only in the commission of an intentional criminal offense.

The content of an accomplice's intent must include: 1) awareness that they are not acting alone, but jointly with others; 2) awareness of the socially dangerous nature of their own actions, as well as the actions of the other accomplices. The accomplice must be aware of the elements of the criminal offense committed by the perpetrator; 3) the desire to achieve a common socially dangerous result.

In the definition of complicity, the legislator specifically emphasizes that through the joint efforts of several persons it is possible to commit only an intentional criminal offense. Based on the legislative definition of complicity (Article 27 of the Criminal Code), it should be concluded that negligent complicity is unacceptable under criminal law, since it does not correspond to the established set of elements characterizing this institution. Paragraph 2 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan “On Certain Issues of the Application by Courts of Legislation on Liability for Banditry and Other Offenses Committed through Complicity” also states: “Complicity in a criminal offense can occur only when an intentional criminal offense is committed; therefore, the commission of a criminal offense by several persons through negligence cannot be regarded as the commission of a criminal offense by a group of persons.” This is because, in order to recognize a criminal offense as having been committed through complicity, it is necessary to establish the presence of all the above-mentioned objective and subjective elements. Complicity requires the joint activity of several persons, which is causally interconnected and united by a common intent.

The possibility of complicity only in an intentional criminal offense presupposes that a person is aware of all the elements constituting the corpus delicti of the criminal offense in which they participate. First and foremost, this means unity in the direction of intent with regard to the object and the circumstances constituting the objective elements of the criminal encroachment. As for the subjective side, the accomplices in a criminal offense may be guided by different motives and purposes in their actions.

In cases where motive and purpose are not classified by the legislator as mandatory elements of the relevant corpus delicti, they are irrelevant for the legal classification of the actions of accomplices and are taken into account when imposing punishment. However, if the legislative description of the corpus delicti of a criminal offense contains an indication of motive and purpose, they must be known to all accomplices, and only a person who knew of the existence of the specified motive (purpose) in the jointly committed act and consciously facilitated its achievement may be recognized as an accomplice.

Commentary to the Criminal Code of the Republic of Kazakhstan dated 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 Worker of the Ministry of Internal Affairs of the Republic of Kazakhstan.

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