Commentary on Article 270. Hijacking, as well as Seizure of an Aircraft or Watercraft or Railway Rolling Stock of the Criminal Code of the Republic of Kazakhstan

1. Hijacking an aircraft or watercraft or railway rolling stock, as well as seizing such an aircraft, watercraft or rolling stock for the purpose of hijacking, shall be punishable by imprisonment for a term of two to eight years.

2. The same acts committed:

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

2) repeatedly;

3) with the use of violence dangerous to life or health, or with the threat of using such violence;

4) with the use of weapons or objects used as weapons, —

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

3. The acts provided for in paragraphs 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 and deprivation of citizenship of the Republic of Kazakhstan, or without such deprivation.

The public danger of this crime lies in the fact that the uncontrolled movement (operation) of the specified types of transport creates a threat to public safety and the occurrence of grave consequences associated with accidents, disasters and human casualties.

The object of the crime is public safety. Additional objects may include human life and health, as well as property.

The subject matter of the crime is an aircraft or watercraft or railway rolling stock.

Hijacking an aircraft is a crime of an international nature.

The Convention for the Suppression of Unlawful Seizure of Aircraft (The Hague, 16 December 1970) states that acts of unlawful seizure of an aircraft in flight or the exercise of control over it threaten the safety of persons and property, seriously disrupt air transport and undermine the confidence of the peoples of the world in the safety of civil aviation.

Information concerning the criminal nature of similar acts involving sea vessels is contained in the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (concluded in Rome on 10 March 1998).

In accordance with subparagraph 30) of Article 3 of the Criminal Code, hijacking or seizure of an aircraft or watercraft or railway rolling stock is classified as a terrorist offence, which significantly increases the degree of public danger of the crime under consideration.

An aircraft is an apparatus supported in the atmosphere by virtue of its interaction with the air, excluding interaction with air reflected from the earth's (water) surface (subparagraph 40) of Article 1 of the Law of the Republic of Kazakhstan dated 15 July 2010 "On the Use of the Airspace of the Republic of Kazakhstan and Aviation Activities").

In accordance with subparagraph 10) of Article 1 of the Law of the Republic of Kazakhstan dated 6 July 2004 "On Inland Waterways", a vessel is an inland waterway vessel that is not a small vessel, a self-propelled or non-self-propelled floating structure used for navigation purposes, including a river-sea vessel, ferry, and technical fleet vessel (dredging and water-cleaning equipment, floating crane and other technical structures of a similar nature).

According to subparagraph 23) of Article 1 of the Law of the Republic of Kazakhstan dated 8 December 2001 "On Railway Transport", rolling stock means traction vehicles (locomotives), wagons, self-propelled and other railway vehicles intended for the transportation of passengers, baggage, cargo, cargo baggage and postal items along railway tracks, as well as special rolling stock.

An aircraft should be understood as a flying apparatus supported in the atmosphere through interaction with the air, other than interaction with air reflected from the surface of the earth or water (an airplane, helicopter, airship, powered hang glider, glider, etc.).

A water transport vessel is a sea, river or lake self-propelled or non-self-propelled floating structure used for navigation purposes. Navigation purposes include the transportation of cargo and passengers, towing vessels and other floating objects, conducting searches, exploration and extraction of mineral resources, construction, hydraulic engineering and underwater technical works, rescue operations, conducting scientific research and certain other purposes (educational, sporting and cultural).

The subject matter of hijacking includes ships, yachts, ferries, boats, submarines, tugboats, floating cranes and other similar technical structures.

The hijacking or seizure of a small inland navigation vessel and another floating object with a capacity of less than 80 register tons, with main engines having a power of less than 55 kW or with outboard motors regardless of their power, a personal watercraft (hydrocycle), rowing boat or kayak shall not be classified as hijacking or seizure under this Article.

Railway rolling stock means means of transportation used in railway transport. These include locomotives, freight wagons, locomotive-hauled passenger wagons and multiple-unit rolling stock, as well as other railway rolling stock intended to ensure the performance of transportation and the functioning of infrastructure.

The objective element of the crime is expressed in the commission of such acts as hijacking an aircraft or watercraft or railway rolling stock, or seizing them for the purpose of hijacking.

Hijacking means the unlawful taking of possession of a vessel or rolling stock while it is stationary, without the use of violence or with the use of violence that is not dangerous to the life or health of the victim.

Seizure means the unlawful taking of possession of a vessel or rolling stock while it is travelling along its route, without the use of violence or with the use of violence that is not dangerous to life or health.

Hijacking and seizure may be committed without violence, through deception, by using or threatening to use violence that is not dangerous to life or health.

The threat of using violence means intimidating victims with the immediate use of violence that is not dangerous to life or health.

Violence or the threat of its use may be directed against the crew of a vessel or railway rolling stock, passengers, technical personnel, security guards and any other persons attempting to prevent the commission of the crime.

The time and circumstances in which this crime is committed are not mandatory elements for its classification. The elements of the crime under consideration may be present both during the flight of an aircraft or while a watercraft is sailing on the high seas, in coastal waters or along a river, or while railway rolling stock is moving along an established route on railway lines, and while such transport is stationary at an airport, at a berth in a sea or river port, at a railway station (terminal) or in a railway transport depot.

By its construction, the corpus delicti is formal. Hijacking should be considered completed from the moment the vehicle begins to move or, if the vessel was already in motion at the time of hijacking, from the moment its direction of movement is changed. Seizure should also be considered completed from the moment possession of the vessel is obtained.

The subjective element of the crime is expressed in an intentional form of guilt in the form of direct intent. The person is aware that they are committing the hijacking or seizure of an aircraft or watercraft or railway rolling stock, foresees the possibility or inevitability of socially dangerous consequences and desires their occurrence.

A distinctive feature of the volitional element of the offender's intent under Article 270 of the Criminal Code, distinguishing this crime from theft of another person's property, is that in the case of hijacking or seizure, the use of another person's property (an aircraft or water transport vessel or railway rolling stock) is unlawful and temporary in nature, whereas in the case of theft, the offender intends to permanently deprive the victim of the possibility of possessing, using and disposing of the property belonging to them.

The motives for committing the crime may be any motives, including mercenary motives, hooligan motives or the desire to take a ride.

If the seizure of an aircraft or watercraft or railway rolling stock is carried out not for the purpose of hijacking, but for the purpose of seizing and holding the crew, team or transport vehicle personnel and its passengers as hostages in order to compel a State, organisation or individual to perform or refrain from performing any action as a condition for the release of the hostages, the act must be classified as hostage-taking under the relevant part of Article 261 of the Criminal Code.

It is also necessary to take into account the possibility that the seizure or hijacking of an aircraft or watercraft or railway rolling stock may be committed by the offender as a means of committing such grave crimes as sabotage (Article 184 of the Criminal Code); an act of terrorism (Article 255 of the Criminal Code), as well as crimes that are not classified as grave: intentional unlawful crossing of the State Border (Article 392 of the Criminal Code), etc.

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

Part 2 of Article 270 of the Criminal Code provides for liability for committing qualified hijacking or seizure of an aircraft or watercraft or railway rolling stock under such aggravating circumstances as the commission of hijacking or seizure:

by a group of persons acting upon prior conspiracy;

repeatedly;

with the use of violence dangerous to life or health, or with the threat of using such violence;

with the use of weapons or objects used as weapons.

Hijacking or seizure of an aircraft or watercraft or railway rolling stock shall be considered committed by a group of persons acting upon prior conspiracy if persons who had agreed in advance to commit the crime jointly participated in it.

Repeated commission means the commission by a person of two or more acts of hijacking or seizure of an aircraft or watercraft or railway rolling stock, provided that the person has not been released from criminal liability in accordance with the procedure established by law or convicted for the previous hijacking or seizure.

Violence dangerous to life and health should be understood as violence that has resulted in the infliction of minor, moderate or serious bodily harm on the victim. These consequences are covered by the elements of the crime provided for in subparagraph 3) of Part 2 of Article 270 of the Criminal Code, and additional classification in conjunction with Articles 106 and 107 of the Criminal Code is not required.

The threat of violence is expressed in intimidation through the threat of using such violence.

The use of weapons means their actual use to cause harm to human life and health during the hijacking or seizure of an aircraft or watercraft or railway rolling stock. For the purposes of this crime, weapons should be understood to include both firearms and cold weapons (see the Law of the Republic of Kazakhstan dated 30 December 1998 "On State Control over the Circulation of Certain Types of Weapons").

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

If it is established that the weapon used during the seizure or hijacking was stolen, additional classification under Article 291 of the Criminal Code is required. The unlawful acquisition of the weapon used constitutes the elements of the crime provided for in Article 287 of the Criminal Code.

In cases where, as a result of the seizure of transport vehicles, persons on board the vessel or railway rolling stock are unlawfully deprived of their liberty, the actions of the guilty person, depending on the consequences, shall be classified cumulatively under the relevant articles of the Criminal Code of the Republic of Kazakhstan.

Part 3 of Article 270 of the Criminal Code establishes liability for the commission of an especially qualified form of this crime. This includes the commission of the crime by a criminal group or the negligent causing of the death of a person or other grave consequences.

Hijacking or seizure of an aircraft or watercraft or railway rolling stock shall be considered committed by a criminal group if it is committed by an organised group, criminal organisation, criminal community, transnational organised group, transnational criminal organisation, transnational criminal community, terrorist group, extremist group, gang or illegal paramilitary formation.

The legislator associates the causing of a person's death during the hijacking or seizure of an aircraft or watercraft or railway rolling stock with a negligent form of guilt.

Other grave consequences in the case of hijacking or seizure of an aircraft or watercraft or railway rolling stock shall be understood as causing serious bodily harm to a person; causing damage on a large or especially large scale; and other consequences indicating the severity of the harm caused (see the commentary to subparagraph 4) of Article 3 of the Criminal Code).

Where consequences in the form of a person's death through negligence or other grave consequences occur, the elements of the crime are material, and the subjective element is characterised by two forms of guilt: intentional commission of hijacking or seizure and a negligent attitude towards the consequences.

Intentional causing of a person's death during hijacking or seizure requires additional classification under Article 99 of the Criminal Code.

The acts provided for in Parts 1 and 2 of Article 270 of the Criminal Code of the Republic of Kazakhstan are classified as grave crimes.

The act provided for in Part 3 of Article 270 of the Criminal Code of the Republic of Kazakhstan is classified as an especially grave crime.

Commentary of 2021 to the Criminal Code of the Republic of Kazakhstan by Isidor Shamilovich Borchashvili, Honoured Worker 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, Honoured Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.*

Constitution Law Code Regulatory Decree Order Decision Resolution Advocate Almaty Lawyer Legal service Legal Consultation Civil Criminal Administrative cases and disputes Defence Arbitration Legal Company of Kazakhstan Law Office Court Cases Declaration Decree Order Resolution Decision Report Conclusion Application Conclusion Convention Contract Memorandum Methodology Rules Note Regulations Programme Charter Charter Article Commentary Resolution Regulations Protocol Draft Programme Rules Messages