Commentary on Article 293 of the Criminal Code of the Republic of Kazakhstan. Hooliganism
1. Hooliganism, that is, an act expressing clear disrespect for society, involving a particularly gross violation of public order, accompanied by the use of violence against citizens or the threat of such violence, as well as the destruction of or damage to another person's property, or the commission of indecent acts distinguished by exceptional cynicism, –
shall be punishable by a fine in an amount of up to two thousand monthly calculation indices, or correctional labour in the same amount, or community service for a period of up to six hundred hours, or restriction of liberty for a period of up to two years, or imprisonment for the same period.
2. The same act, if committed:
- by a group of persons or by a group of persons acting upon prior conspiracy;
- in connection with resistance to a representative of the authorities or another person performing duties related to the protection of public order or suppressing violations of public order;
- repeatedly;
- on board an aircraft, river or sea vessel, or in railway transport, –
shall be punishable by a fine in an amount of up to five thousand monthly calculation indices, or correctional labour in the same amount, or community service for a period of up to one thousand two hundred hours, or restriction of liberty for a period of up to five years, or imprisonment for the same period.
3. Acts provided for in the first or second parts of this Article, if:
- committed by a criminal group;
- committed through the use or attempted use of firearms, gas weapons, knives, knuckle-dusters and other edged weapons, or other objects specially adapted to cause bodily harm, –
shall be punishable by restriction of liberty for a period of three to seven years or imprisonment for the same period.
The public danger of this crime consists in the fact that hooligan acts, while encroaching upon public order, cause significant harm to public tranquillity, disrupt the conditions of citizens' work, everyday life and recreation, and damage the vital interests of individuals, as well as the legitimate interests of organisations, institutions and property, frequently resulting in the commission of other, more serious crimes against individuals, property and other protected interests.
In accordance with the law, criminally punishable hooliganism may be recognised as intentional acts committed with particular grossness, violating public order and expressing the perpetrator's clear disrespect for society and moral standards, motivated by the desire to oppose oneself to those around them and demonstrate a contemptuous attitude towards them, accompanied by the use of violence against citizens or the threat of such violence, as well as the destruction of or damage to another person's property, or the commission of indecent acts distinguished by exceptional cynicism.
The object of the crime under consideration is public order as an element of public security.
Public order should be understood as a system of social relations that ensures peaceful conditions for everyday life, leisure, work and public activities, respect for the aforementioned social values, and the protection of individuals in various spheres of life. Such relations are governed by publicly established rules of conduct applicable to people in public places and by social norms, including regulatory legal acts, customs, traditions and moral standards.
The additional object of the crime is the health, honour and dignity of citizens, the health of a representative of the authorities or another person performing duties related to the protection of public order or suppressing violations of public order, as well as social relations ensuring the normal functioning of public authorities.
The objective element of this crime consists of a particularly gross violation of public order, expressing clear disrespect for society and accompanied by the use of violence against citizens or the threat of such violence, as well as the destruction of or damage to another person's property, or the commission of indecent acts distinguished by exceptional cynicism.
It cannot be ruled out that all the aforementioned characteristics indicating a particularly gross violation of public order may be present simultaneously when hooliganism is committed.
A particularly gross violation of public order is a composite concept. The term "particularly gross" belongs to the category of evaluative concepts, and its specific meaning must be determined not by general, abstract statements concerning hooligan acts, but by the specific objective characteristics of criminally punishable hooliganism. For the elements of hooliganism to be present, the acts in question must be accompanied by violence or the threat of its use, or by the destruction of or damage to another person's property, or by the manifestation of exceptional cynicism.
It follows that not all manifestations (acts) of hooliganism that grossly violate public order necessarily constitute the elements of criminally punishable hooliganism. A comprehensive assessment of the characteristics of criminally punishable hooliganism provides grounds for concluding that the concept of "particularly gross violation of public order" contained in Part 1 of Article 293 of the Criminal Code of the Republic of Kazakhstan covers only those forms of hooligan acts (manifestations) that involve violence (including the destruction or damage of property) and exceptional cynicism.
A particularly gross violation of public order should be understood as the deliberate violation of generally recognised rules of conduct in society (deliberately indecent behaviour in a public place, initiating a quarrel accompanied by obscene language, insulting another person, displaying exceptional cynicism, publicly destroying another person's property). Such acts may be directed both against a specific individual and against an indefinite group of persons.
In accordance with paragraph 3 of the fourth paragraph of Clause 2 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated 12 January 2009, "On Judicial Practice in Cases of Hooliganism", a criminal violation of public order expressing clear disrespect for society and accompanied by the use of violence against citizens or the threat of such violence, the destruction of or damage to another person's property, or the commission of indecent acts distinguished by exceptional cynicism may be recognised as a particularly gross violation of public order. Such acts may also include a prolonged and persistent violation of public order that is not brought to an end, the disruption of a public event, or the temporary suspension of the normal activities of an enterprise, institution, organisation or public transport.
A particularly gross violation of public order is closely connected with another necessary element of hooliganism — clear disrespect for society. This should be understood as a demonstrative violation of generally accepted rules and standards of conduct arising from the perpetrator's intention to oppose themselves to those around them and demonstrate a contemptuous attitude towards them.
The distinction between hooliganism and other crimes against public order lies not in the mere fact that acts objectively disrupting public order have been committed, since this is also characteristic of other crimes, but in the fact that such acts are committed in a demonstrative and openly contemptuous manner, expressing clear disrespect for society and an intention to violate public order. It is precisely such content and orientation of the acts committed that must be established by the court in order to classify the conduct as hooliganism.
Violence, as one of the acts accompanying or constituting hooliganism, should be understood as any form of physical influence exerted upon the victim (victims), including beatings, intentional infliction of minor bodily harm resulting in a short-term health disorder or a minor permanent loss of general working capacity, as well as other methods of physical coercion (tying up, pushing, restraining and so forth).
Since murder committed out of hooligan motives (paragraph 9) of Part 2 of Article 99 of the Criminal Code) or intentional infliction of grievous bodily harm (paragraph 7) of Part 2 of Article 106 of the Criminal Code) constitutes a qualifying circumstance, the question arises as to whether a concurrence of crimes involving hooliganism is possible. It should be taken into account that the elements of hooliganism and hooligan motives are not identical concepts. While the motive underlying hooliganism is disrespect for society and the intention to violate public order, the motive underlying, for example, murder committed out of hooligan motives is ultimately disrespect for human life, even though it arises from the motivation characteristic of hooliganism. Therefore, if, apart from murder committed out of hooligan motives or intentional infliction of grievous bodily harm, the perpetrator has not committed any acts violating public order and expressing clear disrespect for society, there is no concurrence of crimes. However, if murder or intentional infliction of grievous bodily harm constitutes one of the criminal episodes of hooliganism, the act committed must be classified according to the aggregate of the relevant crimes, taking into account the commission of hooligan acts by means of violence (paragraph 9) of Part 2 of Article 99 of the Criminal Code; paragraph 7) of Part 2 of Article 106 of the Criminal Code and Article 293 of the Criminal Code).
Hooligan acts accompanied by the intentional infliction of minor bodily harm upon the victim's health are fully covered by the elements of the crime provided for in the relevant part of Article 293 of the Criminal Code.
At the same time, the infliction of bodily harm of moderate severity or grievous bodily harm, or murder committed out of hooligan motives, must be classified under the relevant provisions of the Criminal Code establishing liability for crimes against human life and health committed out of hooligan motives.
When classifying hooligan acts committed by the perpetrator in conjunction with murder or the infliction of bodily harm of varying degrees of severity, it is necessary to follow the explanations contained in the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated 11 May 2007, "On the Classification of Certain Crimes Against Human Life and Health".
Paragraph 4 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan "On Judicial Practice in Cases of Hooliganism" emphasises that, when distinguishing violence committed out of hooligan motives from violence committed during a quarrel or fight arising from personal hostility, it is necessary to take into account the nature of the relationship between the perpetrator and the victim, the pretext and reason for the conflict, determine who initiated it, the degree and nature of the participants' activity, and other circumstances indicating the direction of the perpetrator's intent. Murder, the infliction of grievous or moderately severe bodily harm cannot be regarded as having been committed out of hooligan motives merely because they were committed in a public place or in the presence of outsiders, if the reasons for their commission were, for example, jealousy, revenge, hostility arising from personal relationships or other motives, as well as unlawful behaviour by the victim who initiated the conflict or fight.
Hooligan acts committed both before and after the infliction of death or moderately severe or grievous bodily harm out of hooligan motives, and not connected with them by a single intent, are in all cases subject to independent classification under the relevant parts of Article 293 of the Criminal Code.
The negligent infliction of bodily harm during the commission of hooliganism cannot serve as grounds for classifying the acts as violence.
Hooliganism involving the humiliation of a person who is physically present must be distinguished from insult as provided for in Article 131 of the Criminal Code. During hooliganism, the degradation of another person's honour and dignity in an indecent form is committed out of hooligan motives, whereas insult as an independent crime arises from personal hostility between the perpetrator and the victim.
In addition, courts must take into account the method, time and place of commission, as well as the intensity, duration and other circumstances of the acts. Such acts may be directed both against a specific individual and against an indefinite group of persons.
If another person's property is unlawfully taken as a result of hooliganism, it is necessary to establish for what purpose the property was taken. If it is established that the perpetrator pursued a mercenary purpose, their acts must be classified according to the method of taking possession of the property as a concurrence of crimes against property and hooliganism.
Destruction of another person's property should be understood as rendering the property completely unusable for its intended purpose, so that it entirely and irreversibly loses its consumer value and is suitable only for disposal.
Damage to another person's property should be understood as causing damage to property that makes it impossible to use it for its intended purpose without carrying out restoration or repair work, since the value, properties and quality of the item deteriorate.
Another person's property means property that does not belong to the perpetrator by right of ownership.
The distinction between hooliganism accompanied by the destruction or damage of another person's property and the intentional destruction or damage of another person's property (Article 202 of the Criminal Code) must be made on the basis of the presence of hooligan motives and, accordingly, the method (circumstances) of destruction of the property. For the destruction or intentional damage of another person's property to constitute hooliganism, it must, in its form, content and direction, represent an act of hooliganism, that is, a demonstrative challenge to society expressed through disrespect for the property of others. A mere intention to destroy the property of a particular person is insufficient.
If, during the commission of hooligan acts, the intentional destruction or damage of another person's property results in substantial damage, such acts, where the aggravating circumstances provided for in this Article are present, are additionally subject to classification under Article 202 of the Criminal Code. Where there are no aggravating circumstances, additional classification is not required. When deciding whether substantial damage has been caused to the victim, courts must proceed from the value of the destroyed property or the cost of restoring the damaged property. In accordance with subparagraph 2) of Article 3 of the Criminal Code of the Republic of Kazakhstan, in relation to Article 202 of the Criminal Code of the Republic of Kazakhstan, substantial damage means damage exceeding two hundred times the monthly calculation index.
The commission of indecent acts distinguished by exceptional cynicism should be understood as acts accompanied by a demonstrative contemptuous attitude towards generally accepted standards of morality and ethics. Exceptional cynicism, as a substantive and evaluative characteristic of hooligan acts, is manifested in an extremely contemptuous attitude towards the moral values of society and the requirements of decent behaviour. This may include acts that substantially disrupt public events or the activities of institutions, organisations, enterprises or public transport, such as displays of shamelessness, humiliation of sick people, elderly people or persons in a helpless condition, the commission of hooligan acts during public or natural disasters, or open disrespect for customs and traditions.
The fifth paragraph of Clause 2 of the aforementioned Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan states that exceptional cynicism should be understood as acts accompanied by a demonstrative contemptuous attitude towards generally accepted standards of morality, such as displays of shamelessness, humiliation of sick people, elderly people, persons in a helpless condition and so forth.
The indictment and the judgment must necessarily indicate precisely how the particularly gross violation of public order was manifested and how the indecent nature of the hooligan acts was expressed. It is impermissible to indicate in the judgment qualifying characteristics of hooliganism that were not alleged against the person by the criminal prosecution authorities.
Criminally punishable hooliganism must be distinguished from petty hooliganism provided for in Article 434 of the Code of Administrative Offences of the Republic of Kazakhstan. Petty hooliganism means the use of obscene language in public places, insulting harassment of individuals, desecration of residential premises, and other similar acts expressing disrespect towards others and disturbing public order and the peace of individuals. Hooligan acts are generally committed in public places (streets, parks, markets, cinemas, public transport and so forth) against strangers and randomly selected persons, although they may also occur in unoccupied places or in private apartments. The concepts of "public order" and "order in public places" must not be confused, since public order must be maintained and may be violated not only in public places but also in other locations.
When establishing the elements of criminally punishable hooliganism, attention must be paid not to the assessment of consequences, particularly in cases where hooligan acts are accompanied by violence or the destruction or damage of property, but to the acts themselves, their form and method of commission, their direction towards violating public order and their expression of disrespect for society.
According to Clause 2 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan "On Judicial Practice in Cases of Hooliganism", the distinctive characteristic of criminally punishable hooliganism, reflecting its higher degree of public danger compared with petty hooliganism, is a particularly gross violation of public order expressing clear disrespect for society.
Where the use of obscene language in public places, insulting harassment of individuals, desecration of residential premises or common-use areas, and other similar acts expressing disrespect towards others and disturbing public order and the peace of individuals are accompanied by violence or the threat of its use, as well as the destruction of or damage to another person's property, such acts go beyond the limits of an administrative offence and constitute the elements of criminally punishable hooliganism.
The structure of the crime is formal. Hooliganism is considered completed from the moment the acts are committed that particularly grossly violate public order, express clear disrespect for society and are accompanied by the use of violence against citizens or the threat of such violence, as well as the destruction of or damage to another person's property, or the commission of indecent acts distinguished by exceptional cynicism.
The subjective element of this crime is characterised by an intentional form of guilt in the form of direct intent. The perpetrator realises that they are particularly grossly violating public order and expressing clear disrespect for society, foresees the possibility or inevitability of socially dangerous consequences and desires their occurrence. At the same time, the choice of the method of achieving such a result (by committing violent or exceptionally cynical hooligan acts), as well as the consequences actually resulting from this, in the form of harm to people's health, property, or the normal activities of institutions, organisations, enterprises or public transport, determines the specific nature and character of the intellectual element of intent in the commission of hooliganism.
The motive for hooliganism is not expressly specified in the disposition of the Article as a mandatory element of the crime, but it is precisely this motive that often constitutes the only criterion allowing hooliganism to be distinguished from related criminal offences. The motive is determined by the conscious need to openly and demonstratively challenge those around the perpetrator, the desire to place selfish interests in opposition to the interests of society, to demonstrate contempt for generally accepted rules of conduct, and to display arrogance while intoxicated, crude force, lawlessness, a sense of being permitted to do anything, and unjustified aggression.
The subject of the crime is a general subject, that is, a sane individual who has reached the age of 16 (Part 1).
The qualifying characteristics of hooliganism (Part 2 of Article 293 of the Criminal Code) include the same acts:
- committed by a group of persons or by a group of persons acting upon prior conspiracy;
- connected with resistance to a representative of the authorities or another person performing duties related to the protection of public order or suppressing violations of public order;
- committed repeatedly;
- committed on board an aircraft, river or sea vessel, or in railway transport.
Hooliganism is considered to have been committed by a group of persons if two or more perpetrators who had not previously agreed to commit hooliganism participate in it, that is, if two or more persons directly participate in the crime with an intent arising during the commission of hooliganism (a suddenly arising intent), or if another person joins an individual who is already committing hooligan acts.
When classifying the actions of perpetrators under the characteristic of "committed by a group of persons upon prior conspiracy", it is necessary to establish whether there was an agreement, expressed in any form, between two or more persons to commit hooliganism, and whether these persons agreed to violate public order through actions directly aimed at this, that is, whether they reached an agreement before at least one perpetrator carried out the objective element of the crime.
Hooliganism is also classified as having been committed by a "group of persons upon prior conspiracy" where the joint efforts of two or more persons are combined to commit hooliganism, and, in accordance with the prior distribution of roles, the actions of each accomplice constitute a necessary condition for the actions of the other accomplices and are causally connected with the common criminal result arising from the activities of all accomplices. In such cases, the participation of two or more perpetrators in committing hooliganism is not mandatory; the presence of one perpetrator is sufficient where other forms of complicity exist.
The liability of an organiser, instigator or aider arises under Article 293 of the Criminal Code with reference to Article 28 of the Criminal Code, except in cases where they simultaneously act as co-perpetrators of hooliganism.
A person who had not entered into a prior agreement with the other accomplices in hooliganism but joined them and directly participated while they were committing it must be held liable as a co-perpetrator for the acts actually committed by that person (Clause 9 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan "On Judicial Practice in Cases of Hooliganism").
When deciding whether the actions of several persons should be classified under Part 3 of Article 293 of the Criminal Code with reference to the qualifying characteristic provided for in subparagraph 1) of Part 2 of that Article, it must be taken into account that the prior agreement must concern not only the joint commission of hooligan acts but also the use of weapons or objects specially adapted to cause bodily harm. For the classification of the act, it is irrelevant whether all persons who agreed to commit such a crime actually used weapons or such objects.
If, during the commission of joint unlawful acts, one person uses or attempts to use weapons or objects specially adapted to cause bodily harm in the absence of a prior agreement with the other participants in the crime, their actions, where there are grounds for doing so, are subject to classification taking into account the provisions of Article 30 of the Criminal Code, "Excess by Participants in a Criminal Offence".
A., K. and Ch. grossly violated public order, demonstratively opposed themselves to those around them and expressed clear disrespect for society. Victim B. actively defended himself and also protected the other victims; however, the convicted persons resisted him, and one of them, Ch., used a gas weapon against B. for the purpose of suppressing the resistance shown by him. The court classified the actions of A., K. and Ch. under subparagraph 2) of Part 3 of Article 293 of the Criminal Code as hooliganism committed through the use of a gas weapon and connected with resistance to a person suppressing a violation of public order. There had been no prior agreement between A., K. and Ch., who used the gas weapon, either to commit this crime or to use the gas weapon during its commission. Under what circumstances were the hooligan acts of A. and K. incorrectly classified under subparagraph 2) of Part 3 of Article 293 of the Criminal Code?
The criminal acts of a person may be classified under subparagraph 2) of Part 2 of Article 293 of the Criminal Code if, while committing hooligan acts, they are directly connected with resistance to a representative of the authorities or another person performing duties related to the protection of public order or suppressing violations of public order.
Resistance to a representative of the authorities or another person performing duties related to the protection of public order or suppressing violations of public order should be understood as intentional acts by the perpetrator aimed at overcoming the lawful actions of such persons directed at suppressing a violation of public order (striking, beating, inflicting bodily harm). For example, restraining or disarming a person committing hooliganism, or otherwise preventing the continuation of hooligan acts. Resistance shown after the hooligan acts have been stopped, for example, in connection with the subsequent detention of the perpetrator, is subject to classification as a concurrence of crimes together with hooliganism.
Hooligan acts involving resistance to a person performing duties related to the protection of public order or suppressing violations of public order, including the use of violence or the threat of violence against such persons, are fully covered by the disposition of subparagraph 2) of Part 2 of Article 293 of the Criminal Code and do not require additional classification under other Articles. Resistance to a person performing duties related to the protection of public order or suppressing violations of public order is not covered by the elements of hooliganism only where the use of force during such resistance results in the commission of an even more serious offence.
If, during resistance to a person performing duties related to the protection of public order or suppressing violations of public order, the perpetrator intentionally inflicts grievous or moderately severe bodily harm upon that person's health or commits murder, the act, where there are grounds for doing so, must be classified as a concurrence of crimes under subparagraph 2) of Part 2 of Article 293 of the Criminal Code and, respectively, subparagraph 2) of Part 2 of Article 106 of the Criminal Code, subparagraph 2) of Part 2 of Article 107 of the Criminal Code or subparagraph 2) of Part 2 of Article 99 of the Criminal Code, as the commission of such crimes against a person in connection with the performance of their official duties or professional or public obligations.
When resisting, the perpetrator must realise that the victim is a representative of the authorities or another person performing duties related to the protection of public order or suppressing violations of public order.
In accordance with subparagraph 9) of Article 3 of the Criminal Code of the Republic of Kazakhstan, representatives of the authorities include persons holding public positions who, in accordance with the procedure established by the law of the Republic of Kazakhstan, are vested with administrative powers in relation to persons who are not subordinate to them in their official capacity, including employees of law enforcement or special state bodies, military police bodies, and military personnel participating in ensuring public order. If there is no internal connection between these actions and each of them constitutes an independent crime, hooliganism and resistance to a representative of the authorities constitute a concurrence of crimes. For example, if a person resists a representative of the authorities during their detention after hooligan acts have been stopped, their actions must be classified under Articles 293 and 380 of the Criminal Code, because in this case resistance to a representative of the authorities constitutes an independent criminal offence and is not regarded as a qualifying form of hooliganism under subparagraph 2) of Part 2 of Article 293 of the Criminal Code.
Other persons performing duties related to the protection of public order or suppressing violations of public order include conscript military personnel involved in protecting public order, as well as other persons who participate in such activities on their own initiative. A person suppressing a violation of public order is any individual who attempts to prevent a violation of public order, including hooligan acts or acts of vandalism, for example, a person separating people involved in a fight, calling upon passers-by to stop a violation of public order, and so forth.
Repeated commission means the commission of two or more crimes provided for in the same Article or in the same part of Article 293 of the Criminal Code, in any order. The characteristic of repeated hooliganism is absent if the person has previously been convicted of the earlier crime or has been released from criminal liability on grounds established by law. If hooligan acts are committed with insignificant interruptions (intervals) covered by a single intent, the conduct committed is classified as a single continuing crime (hooliganism).
The public danger of hooliganism increases when it is committed on board an aircraft, river or sea vessel, or in railway transport. Therefore, such acts are classified under subparagraph 4) of Part 2 of Article 293 of the Criminal Code and entail a more severe penalty than that provided for simple hooliganism.
Part 3 of Article 293 of the Criminal Code of the Republic of Kazakhstan establishes criminal liability for hooliganism:
- committed by a criminal group;
- committed through the use or attempted use of firearms, gas weapons, knives, knuckle-dusters and other edged weapons, or other objects specially adapted to cause bodily harm.
The definition of a criminal group is provided in subparagraph 24) of Article 3 and Part 3 of Article 31 of the Criminal Code of the Republic of Kazakhstan.
The use of firearms, gas weapons, knives, knuckle-dusters and other edged weapons, or other objects specially adapted to cause bodily harm, should be understood as actions aimed at using them for their direct intended purpose to cause bodily harm (firing shots, inflicting stabbing or cutting blows and so forth), as well as their deliberate use as a means of psychological coercion. In other words, the grounds for classifying such actions under subparagraph 2) of Part 3 of Article 293 of the Criminal Code include not only causing or attempting to cause harm to the victim's health by using the aforementioned objects, but also other conduct by the perpetrator involving the use of such objects during hooligan acts, which creates a real threat to the life and health of the victim. In this regard, it must be taken into account that the use of a weapon means the use of its damaging properties only (for example, where a blow is delivered with the butt of a weapon during hooliganism, it must be assessed not as the use of a weapon but as the use of an object to cause bodily harm).
Where, during hooligan acts, an obviously defective or unloaded weapon, or another object imitating a weapon specified in subparagraph 2) of Part 3 of Article 293 of the Criminal Code (a pistol replica, toy knife or knuckle-duster and so forth), is used, the perpetrator's actions cannot be classified under subparagraph 2) of Part 3 of Article 293 of the Criminal Code, regardless of how the victim perceived the object.
A verbal threat during hooliganism, as well as the display of weapons or other objects, is covered by the disposition of Part 1 of Article 293 of the Criminal Code and is not classified as hooliganism committed through the use of such objects, since such actions do not yet constitute the actual use of weapons or other objects and therefore do not create a real threat to the life and health of citizens (paragraphs 18–19 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated 12 January 2009, "On Judicial Practice in Cases of Hooliganism").
The objects of hooliganism under Part 3 of Article 293 of the Criminal Code are firearms, gas weapons, knives, knuckle-dusters and other edged weapons, or other objects specially adapted to cause bodily harm (see the commentary to Article 287 of the Criminal Code).
Pneumatic weapons are weapons designed to remotely strike a target using a projectile that receives directed motion through the energy of compressed, liquefied or solidified gas.
Objects specially adapted to cause bodily harm should be understood as objects that the perpetrator has previously or during the commission of hooligan acts adapted for this purpose by giving them damaging characteristics, as well as objects that have not undergone any prior modification but which, due to their structural features and properties, the perpetrator has specially prepared and carried for the purpose of using them to cause bodily harm (household knives, screwdrivers, axes, clubs, baseball bats, sections of metal pipes, sticks, reinforcement bars, razors and others).
The use or attempted use of objects found at the crime scene that were not specially adapted to cause bodily harm cannot constitute grounds for classifying the acts under the characteristics specified in subparagraph 2) of Part 3 of Article 293 of the Criminal Code.
An attempt to use firearms, gas weapons, knives, knuckle-dusters and other edged weapons, or other objects specially adapted to cause bodily harm, during hooliganism should be understood as actions directly aimed at using these objects in accordance with their intended purpose, but not completed due to circumstances beyond the perpetrator's control.
When classifying hooligan acts involving the use of objects specially adapted to cause bodily harm or threats to use such objects, courts must take into account the structural purpose of the object, the method and intensity of the blows, the presence of properties enabling the object to disrupt the anatomical integrity or physiological functions of human organs and tissues, the likelihood of causing bodily harm, and other circumstances.
Where a person uses animals that pose a danger to human life or health during the commission of hooliganism, the act may be classified under Part 1 of Article 293 of the Criminal Code, taking into account the specific circumstances of the case.
Hooliganism must be distinguished from vandalism, that is, acts aimed at desecrating buildings or other structures or damaging property in public transport or other public places. In vandalism, the violation of public order does not necessarily have a demonstratively gross character or express clear disrespect for society in every case, since the violation of public order may remain unknown until its consequences are discovered.
The act provided for in Part 1 of Article 293 of the Criminal Code of the Republic of Kazakhstan belongs to the category of minor crimes.
The act provided for in Part 2 of Article 293 of the Criminal Code of the Republic of Kazakhstan belongs to the category of crimes of medium severity.
The act provided for in Part 3 of Article 293 of the Criminal Code of the Republic of Kazakhstan belongs to the category of serious crimes.
Commentary on the Criminal Code of the Republic of Kazakhstan (2021) by Isidor Shamilovich Borchashvili, Honoured Worker 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 Reforming 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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