Commentary on Article 3. Clarification of Certain Concepts Contained in the Criminal Code of the Republic of Kazakhstan

Pursuant to paragraph 7 of Article 23 of the Law of the Republic of Kazakhstan dated 6 April 2016 “On Legal Acts”, where it is necessary to clarify the terms and definitions used in a normative legal act, an article (paragraph) explaining their meaning shall be included therein. Terms and definitions in a normative legal act in the Kazakh language shall be arranged in alphabetical order. Terms and definitions in a normative legal act in the Russian language shall correspond to the order in which they are set out in the Kazakh language. At the same time, the terms and definitions used in the Criminal Code must correspond to the terms and definitions applied in a superior normative legal act regulating homogeneous public relations (i.e. the Constitution, laws introducing amendments and additions to the Constitution, and constitutional laws).

The methodological value of this approach lies in giving integrity and completeness to the conceptual and categorical framework of criminal law, since the definitions set out in the article under consideration have equal significance for all provisions of criminal legislation. Taking into account developments in science and practice, this conceptual and categorical framework may be supplemented and amended.

Neither the Criminal Code of the Kazakh SSR dated 22 July 1959 nor the Criminal Code of the Republic of Kazakhstan dated 16 July 1997 contained a similar article. In the previously applicable codes, terms and definitions, as well as certain specific instructions, were set out in notes to articles where explaining them in the disposition of the article itself was considered inappropriate because it could prejudice the meaning of the legal provision.

At the same time, it should be noted that the legislator does not always adhere to this approach. Separate articles are devoted to the most general and fundamental concepts of criminal law. For example, such categories as a criminal infraction and a crime, guilt, and punishment have their essential characteristics disclosed in the relevant sections of the criminal law.

Along with specifying all the elements of the composition of a criminal offence in the dispositions of individual articles of the Special Part of the Criminal Code, the legislator also uses a term denoting their entirety. For example, “murder is the unlawful intentional causing of death to another person”; “theft is the secret misappropriation of another person’s property”; “looting is the appropriation, on a battlefield, of items belonging to the dead and wounded”. Such an approach is justified because the detailed disclosure of the elements of a criminal offence facilitates understanding of the disposition.

Certain shortcomings of a single provision explaining the concepts used in criminal law should also be noted. First and foremost, these include the incomplete coverage of terms actually used in the Criminal Code. For example, Article 3 does not explain the following specific concepts that require legal definitions for the purpose of the proper understanding and application of criminal law provisions:

• the concept of an “organisation”, which is widely used in criminal law (“the rights and legitimate interests of citizens and organisations”; “damage caused to an organisation or the State”; “an attack on citizens or organisations”, etc.);
• the concept of “mass riots”, which has no clear definition in criminal law (despite the fact that liability for mass riots is established in a separate article of the Special Part of the Criminal Code); this makes it impossible to distinguish mass riots from hooliganism, primarily due to the absence of a quantitative criterion of mass participation;
• the concepts of “acquisition”, “sale”, “storage”, “carrying”, “transportation” and “dispatch” (concepts characteristic of a whole range of heterogeneous criminal offence compositions; however, their definitions are provided only in one regulatory resolution of the Supreme Court of the Republic of Kazakhstan and relate exclusively to one type of criminal offence).

The examples provided constitute only a small part of the conceptual framework that is significant from the standpoint of regulating criminal legal relations but has not been taken into account in Article 3 of the Criminal Code.

In our view, another shortcoming of Article 3 of the Criminal Code is the unusually extensive nature of the provision, which is atypical of criminal legislation: it consists of 42 paragraphs; moreover, judging by current trends, this provision will continue to grow in volume. This raises the question of how convenient and appropriate it is to have such an unusually extensive provision in criminal law.

Another important aspect is that some definitions used in criminal law are explained in Article 3 of the Criminal Code, whereas other related (homogeneous) definitions are explained in regulatory resolutions of the Supreme Court of the Republic of Kazakhstan. For example, the concept of “exploitation” used in Article 128 of the Criminal Code is explained in Article 3 of the Code, whereas other special concepts also used in Article 128 of the Criminal Code (“purchase and sale”, “conclusion of other transactions”, “recruitment”, “harbouring”, etc.) are explained in the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 29 December 2012 “On the Practice of Applying Legislation Establishing Liability for Human Trafficking”. The situation is similar with regard to the explanation of terms used in articles concerning corruption offences. Thus, the concept of an “official” is disclosed in Article 3 of the Criminal Code, whereas the related concepts of “foreign public official” and “official of an international organisation” are explained by the Supreme Court of the Republic of Kazakhstan in its regulatory resolution dated 27 November 2015 “On the Practice of Considering Certain Corruption Offences”. This clearly demonstrates the lack of regulation of issues concerning competition and the hierarchy of normative legal acts in the interpretation of concepts used in the Criminal Code.

Another shortcoming of Article 3, in our opinion, is the explanation of concepts that are not specific to criminal law, i.e. concepts more characteristic of other branches of law and already enshrined in other (sectoral) normative legal acts. Such concepts include, for example, “official” (explained in the Law of the Republic of Kazakhstan dated 23 November 2015 “On Civil Service of the Republic of Kazakhstan”), “administrative and economic functions” and “organisational and administrative functions” (explained in the Law of the Republic of Kazakhstan dated 18 November 2015 “On Combating Corruption”), and others. This feature of Article 3 of the Criminal Code may become problematic: a normative legal act duplicating (repeating) the explanation of a particular term will have equal legal force, and its definition may differ in meaning and content from the definition enshrined in Article 3. Furthermore, the very fact that the same concepts are explained twice is inconsistent with the principles and foundations of legal drafting techniques.

The aforementioned problematic aspects relating to Article 3 of the Criminal Code require resolution and regulation.

Let us proceed to consider the substantive content of the paragraphs of Article 3 of the Criminal Code.

1. Exploitation of a person — the use by the perpetrator of forced labour, that is, any work or service exacted from a person through the use of violence or the threat of its use, which that person has not offered voluntarily to perform, except in cases provided for by the laws of the Republic of Kazakhstan;

the use by the perpetrator of another person’s engagement in prostitution or other services provided by that person for the purpose of appropriating the income received, as well as compelling a person to provide services of a sexual nature without the perpetrator pursuing that purpose;

compelling a person to engage in begging, that is, to commit an antisocial act involving soliciting money and (or) other property from other persons;

other acts involving the exercise by the perpetrator of the powers of an owner in respect of a person who, for reasons beyond that person’s control, is unable to refuse to perform work and (or) provide services for the perpetrator and (or) another person.

The term under consideration is used as a particularly qualifying element in Articles 125 “Abduction of a Person” and 126 “Unlawful Deprivation of Liberty”, and as a constituent element of the objective side of the offences under Part 1 of Article 128 “Human Trafficking” and Part 1 of Article 135 “Trafficking in Minors”.

In Part 1 of Article 128 and Part 1 of Article 135 of the Criminal Code, exploitation of a person constitutes an element of the objective side in the form of an act of exploitation, as well as in the form of the actual orientation of other acts towards exploitation. In subparagraph 2) of Part 3 of Article 125 and subparagraph 2) of Part 3 of Article 126, exploitation characterises the subjective side of the criminal offence, namely the purpose as an element of intent.

Exploitation of a person is the extraction of benefits from the use of a person’s labour or useful qualities and characteristics. The defining feature of the concept of “exploitation of a person” is the use of a person as an object of ownership by means of coercion to perform actions beneficial to the exploiter (in most cases, exploitation of a person is carried out by taking advantage of that person’s dependent position).

The most common forms of exploitation of a person are labour exploitation and sexual exploitation. Labour exploitation is expressed in compelling the exploited person to perform various types of work and deriving profit or other benefits, in whole or in part, for the benefit of the exploiter. Sexual exploitation is expressed in compelling a person to engage in prostitution or to provide other services of a sexual nature that are not related to prostitution (for example, erotic massage services).

It should be noted that international legal instruments use the term “slavery” instead of the term “exploitation of a person”. The prohibition of holding a person in slavery or servitude, and the prohibition of slavery and the slave trade in all their forms, are contained in Article 4 of the Universal Declaration of Human Rights, adopted by United Nations General Assembly Resolution 217 A (III) dated 10 December 1948. A similar prohibition is reiterated in Article 8 of the International Covenant on Civil and Political Rights (New York, 16 December 1966), which Kazakhstan ratified by a law dated 28 November 2005.

The definition of slavery is provided in the Slavery Convention dated 25 September 1926, ratified by the Republic of Kazakhstan by a law dated 5 February 2008, according to which slavery is the status or condition of a person over whom any or all of the attributes of the right of ownership are exercised.

In the aforementioned documents, slavery is understood as the legal, formally recognised status of a person in which that person’s personal freedom is officially denied. The aforementioned international instruments are aimed specifically at prohibiting legal slavery and condemning the policies of individual states that have not abolished this institution.

At present, slavery as such has been eradicated in the modern world, which makes it possible to regard the term “slavery” as an archaism (an outdated concept).

The Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery dated 7 September 1956, ratified by the Republic of Kazakhstan by a law dated 5 February 2008, lists institutions and practices similar to slavery, which include: debt bondage, serfdom, and the servile status of women and children within the family.

Debt bondage is the status or condition arising from the pledging by a debtor of their personal services or those of a person dependent upon them as security for a debt, if the value of the services, as reasonably assessed, is not applied towards the liquidation of the debt or if the length and nature of those services are not respectively limited and defined.

Serfdom is a condition of land use under which the user is bound by law, custom or agreement to live and work on land belonging to another person and to render certain services to that other person, with or without remuneration, and is unable to change that condition.

The servile status of a woman within the family is any institution or practice whereby: 1) a woman is promised or given in marriage, without her right to refuse, by her parents, guardian, family or any other person or group of persons, in return for payment in money or in kind; 2) the husband of a woman, his family or his clan has the right to transfer her to another person in return for payment or otherwise; 3) upon the death of her husband, a woman is transferred by inheritance to another person.

The servile status of a child within the family is any institution or practice whereby a child or young person under the age of eighteen is delivered by one or both of their parents or by their guardian to another person, with or without payment, for the purpose of exploiting that child or young person or their labour.

At the same time, under the meaning of the International Covenant, forced or compulsory labour does not include work or service performed pursuant to a court sentence or order, or work or service provided for by laws on military service, a state of emergency, and other laws establishing general civic obligations.

2. Significant damage and significant amount — in Articles: 198 and 199 — the amount of damage or the value of rights to use intellectual property objects, or the value of copies of copyright and (or) related rights objects, or goods containing inventions, utility models, industrial designs, plant varieties or topographies of integrated circuits, in an amount exceeding two hundred monthly calculation indices; 202, 269-1 — damage caused in an amount exceeding two hundred monthly calculation indices; 214 — the quantity of goods whose value exceeds two thousand monthly calculation indices; 233 — damage caused in an amount exceeding one thousand monthly calculation indices; 325, 326, 328, 335, 337, 340 and 342 — the monetary value of the costs necessary to eliminate environmental damage or restore the consumer properties of natural resources, in an amount exceeding one hundred monthly calculation indices; in other articles — the amount of damage exceeding two hundred monthly calculation indices; 366 and 367 — an amount of money, the value of securities, other property or benefits of a property-related nature ranging from fifty to three thousand monthly calculation indices.

Significant damage and a significant amount constitute elements of the basic compositions of criminal offences or qualifying elements (i.e. aggravating elements) of qualified compositions.

Damage in the criminal-law sense is harm caused to legally protected interests. Damage characterises the socially dangerous consequences of an act. Since the definition under consideration calculates damage in monetary terms — in monthly calculation indices — it should be considered that any reference to damage in criminal law implies material damage. Damage is expressed in loss, losses or detriment that can be assigned a monetary value. Physical and moral damage are irrelevant for determining the amount of significant damage under the Criminal Code.

The infliction of significant damage is also covered by the concept of “substantial harm” (subparagraph 14) of Article 3 of the Criminal Code). This means that the infliction of significant damage may constitute a constituent or qualifying element not only in the compositions of criminal offences in which this element is directly specified in an article of the Special Part of the criminal law, but also in cases where the socially dangerous consequence is the infliction of substantial harm to the rights and legitimate interests of citizens, organisations, society and the State.

Amount in the criminal-law sense is the aggregate value of a certain quantity of material objects, usually homogeneous, which have become the subject matter of a criminal offence. Amount is an element characterising a criminal act (action or omission) from a quantitative perspective. As a rule, the concept of “amount” in criminal legislation expresses the so-called criminal profit (criminal income) obtained as a result of committing an act.

Unlike the concept of “significant damage”, the commission of an act in a significant amount is not covered by the concept of “substantial harm” (subparagraph 14) of Article 3 of the Criminal Code). This means that the commission of an act in a significant amount may constitute a constituent or qualifying element only in those compositions of criminal offences in which this element is directly specified in an article of the Special Part of the Criminal Code.

It is important to understand the fundamental differences between the concepts of “causing damage” and “committing an act in a certain amount”. At the same time, it should be noted that committing an act in a significant amount may be associated with causing significant material damage (for example, through tax arrears, etc.). Therefore, in a number of cases, committing an act on an especially large scale simultaneously entails the infliction of significant damage.

Criminal law distinguishes three types of damage (significant, large and especially large) and four types of amounts (insignificant, significant, large and especially large).

Significant damage and a significant amount are specified in the following articles of the Criminal Code:

Article 71 of the Budget Code of the Republic of Kazakhstan dated 4 December 2008 establishes the requirements for drafting a bill on the republican budget. According to paragraph 3 of that article, the text of the draft law on the republican budget must contain the amount of the monthly calculation index for the next financial year.

To determine significant damage or a significant amount, the amount of the monthly calculation index established by the law on the republican budget as of 1 January or another month of the year in which the criminal offence was committed shall apply.

At the time of the adoption of the Criminal Code in 2014, all articles of the Special Part in which significant damage (or a significant amount) was specified as a qualifying element were listed in the paragraph under consideration.

In the articles of the Special Part of the Criminal Code not listed in the paragraph under consideration, significant damage is defined as damage in an amount exceeding one hundred times the monthly calculation index.

Significant damage is mentioned in the definition of the concept of “substantial harm” (subparagraph 14) of Article 3 of the Criminal Code), that is, the infliction of significant damage is one of the harmful consequences recognised as substantial harm. Therefore, in the articles of the Special Part in which the qualifying element of “significant damage” is not specified, but which refer to the infliction of substantial harm, the latter should, in certain cases, be understood as damage in an amount exceeding one hundred times the monthly calculation index.

The term “monthly calculation index” has existed in legislation since 21 December 1995, when the President of the Republic of Kazakhstan signed the Decree having the force of law “On the Republican Budget for 1996”.

In the first quarter of 1996, the monthly calculation index amounted to 320 tenge; in the second quarter, 380 tenge; in the third quarter, 460 tenge; and in the fourth quarter, 530 tenge. From 1 January 1997, the monthly calculation index amounted to 550 tenge; from 1 April, 565 tenge; from 1 July, 585 tenge; and from 1 October, 620 tenge. From 1 January 1998, the monthly calculation index amounted to 630 tenge; from 1 April, 640 tenge; from 1 July, 650 tenge; and from 1 October, 660 tenge. From 1 January 1999, the monthly calculation index amounted to 660 tenge; from 1 April, 715 tenge; and from 1 October, 725 tenge. From 1 January 2000, the monthly calculation index was set at 725 tenge; from 1 January 2001, at 775 tenge; from 1 January 2002, at 823 tenge; from 1 January 2003, at 872 tenge; from 1 January 2004, at 919 tenge; from 1 January 2005, at 971 tenge; from 1 January 2006, at 1,030 tenge; from 1 January 2007, at 1,092 tenge; from 1 January 2008, at 1,168 tenge; from 1 January 2009, at 1,273 tenge; from 1 July 2009, at 1,296 tenge; from 1 January 2010, at 1,413 tenge; from 1 January 2011, at 1,512 tenge; from 1 January 2012, at 1,618 tenge; from 1 January 2013, at 1,731 tenge; from 1 January 2014, at 1,852 tenge; from 1 January 2015, at 1,982 tenge; from 1 January 2016, at 2,121 tenge; from 1 January 2017, at 2,269 tenge; from 1 January 2018, at 2,405 tenge; from 1 January 2019, at 2,525 tenge; from 1 January 2020, at 2,651 tenge; and from 1 January 2021, at 2,917 tenge.

The Law of the Republic of Kazakhstan dated 8 April 2016 “On Amendments and Additions to Certain Legislative Acts of the Republic of Kazakhstan on Arbitration Issues” introduced adjustments to exclude the provisions of Article 218 of the Criminal Code from the content of subparagraph 2) of Article 3 of the Criminal Code (in connection with the exclusion of a significant amount from the elements of the basic composition of the criminal offence provided for in Part 1 of Article 218 of the Criminal Code, “Legalisation (Laundering) of Money and (or) Other Property Obtained by Criminal Means”).

The Law of the Republic of Kazakhstan dated 12 July 2018 “On Amendments and Additions to Certain Legislative Acts of the Republic of Kazakhstan on Issues of Improving Criminal and Criminal Procedure Legislation and the Activities of Law Enforcement and Special State Bodies” doubled the threshold values of significant damage and significant amounts for most of the compositions of criminal offences provided for in subparagraph 2) of Article 3 of the Criminal Code. The exceptions were articles concerning environmental criminal offences (Articles 324, 325, 326, 328, 330, 332, 333, 334, 337 and 343 of the Criminal Code), for which the threshold value of significant damage was, on the contrary, substantially reduced (from 100 to 20 monthly calculation indices). The threshold values of the amount of a bribe under Articles 366 and 367 of the Criminal Code remained unchanged. Thus, the doubling of the threshold values of significant amounts and significant damage primarily affected compositions of economic criminal offences and was associated, first and foremost, with the humanisation of criminal legislation in the field of legal regulation of business (in relation to acts that do not pose a high degree of public danger) and the trend towards reducing administrative pressure on entrepreneurship (within the framework of stimulating small and medium-sized businesses). The substantial reduction (fivefold) in the threshold values of significant damage for environmental criminal offence compositions was associated with the tightening of liability and the general strengthening of measures to combat environmental criminal offences.

The Law of the Republic of Kazakhstan dated 28 October 2019 “On Amendments and Additions to Certain Legislative Acts of the Republic of Kazakhstan on Regulation of the Agro-Industrial Complex” supplemented the concepts of significant damage and significant amount with indicators of significant damage resulting from the illegal felling, destruction or damage of trees and shrubs (Article 340 of the Criminal Code). This addition was associated with the inclusion of socially dangerous consequences in the form of significant damage among the constituent elements of the criminal offence provided for in Article 340 of the Criminal Code.

Pursuant to the Law of the Republic of Kazakhstan dated 2 January 2021 “On Amendments and Additions to Certain Legislative Acts of the Republic of Kazakhstan on Environmental Issues”, significant damage and a significant amount under Articles 325, 326, 328, 335, 337, 340 and 342 of the Criminal Code shall mean the monetary value of the costs necessary to eliminate environmental damage or restore the consumer properties of natural resources, in an amount exceeding one hundred monthly calculation indices. These amendments shall enter into force on 1 July 2021.

3. Especially large damage and an especially large amount — in Articles: 188, 188-1, 191, 192 and 295-1 — the value of property or the amount of damage exceeding two thousand times the monthly calculation index; 189, 190, 194, 197, 202, 204 and 425 — the value of property or the amount of damage exceeding four thousand times the monthly calculation index; 214 — income exceeding twenty thousand monthly calculation indices; 216 — damage caused to an individual in an amount exceeding five thousand times the monthly calculation index, or damage caused to an organisation or the State in an amount exceeding fifty thousand monthly calculation indices; 217 — income exceeding five thousand monthly calculation indices; 229, 230 — damage in an amount exceeding twenty thousand times the monthly calculation index; 234 — the value of goods moved across the border exceeding twenty thousand monthly calculation indices; 245 — the amount of payments not received by the budget exceeding seventy-five thousand monthly calculation indices for the audited period, provided that the amount of taxes and other mandatory payments to the budget assessed following a tax audit for one calendar year within the audited period exceeds ten per cent of the total amount of all taxes and other mandatory payments to the budget calculated by the taxpayer for that calendar year; 253 — an amount of money, the value of securities, other property or benefits of a property-related nature exceeding two thousand monthly calculation indices; 307 — income exceeding five thousand monthly calculation indices; 324, 325, 326, 328, 329, 330, 332, 333, 334, 337, 339 and 343 — the monetary value of the costs necessary to eliminate environmental damage or restore the consumer properties of natural resources, in an amount exceeding twenty thousand monthly calculation indices; 365 — damage caused to an individual in an amount exceeding two thousand times the monthly calculation index, or damage caused to an organisation or the State in an amount exceeding ten thousand times the monthly calculation index; 366 and 367 — an amount of money, the value of securities, other property or benefits of a property-related nature exceeding ten thousand monthly calculation indices; in other articles — the amount of damage exceeding four thousand times the monthly calculation index.

Especially large damage and an especially large amount are specified in the following articles of the Criminal Code:

Especially large damage is regarded in criminal legislation as a qualifying and particularly qualifying element of criminal offence compositions (where it is directly specified in an article of the Special Part of the Criminal Code), as well as a circumstance aggravating criminal liability and punishment (the infliction of especially large damage is covered by the concept of “causing grave consequences” provided for in subparagraph 2) of Part 1 of Article 54 of the Criminal Code).

Accordingly, in the articles of the Special Part of the Criminal Code that do not contain the qualifying (or particularly qualifying) element of “especially large damage” but refer to the causing of grave consequences, the latter should, in certain cases, be understood as damage in an amount exceeding two thousand times the monthly calculation index.

In criminal legislation, the commission of an act in an especially large amount is regarded solely as a qualifying or particularly qualifying element (that is, where this element is enshrined in an article of the Special Part of the Criminal Code). This element cannot be recognised as a circumstance aggravating criminal liability and punishment (since it is not covered by the concept of “grave consequences”). At the same time, it should be borne in mind that committing an act in an especially large amount is often associated with causing material damage (for example, through tax arrears and other similar circumstances). Therefore, in a number of cases, committing an act in an especially large amount entails the infliction of especially large, large or significant damage.

The Law of the Republic of Kazakhstan dated 12 July 2018 “On Amendments and Additions to Certain Legislative Acts of the Republic of Kazakhstan on Issues of Improving Criminal and Criminal Procedure Legislation and the Activities of Law Enforcement and Special State Bodies” doubled the threshold values of especially large damage and especially large amounts for a number of criminal offence compositions. This measure affected a number of criminal offence compositions against property (including those involving misappropriation) — Articles 189, 190, 194, 197, 202 and 204 of the Criminal Code. The threshold values of an especially large amount under Article 234 of the Criminal Code, “Economic Smuggling”, were also doubled. The same measure (doubling the threshold values of especially large damage and especially large amounts) was extended to articles not included in the list of criminal offence compositions under subparagraph 3) of Article 3 of the Criminal Code but allowing for the possibility of causing especially large damage (in the form of causing other grave consequences).

Thus, the doubling of the threshold values of especially large damage and especially large amounts was обусловлено by the need to adjust the threshold values as a consequence of the doubling of the threshold values of significant and large damage and amounts (subparagraphs 2) and 38) of Article 3 of the Criminal Code), in accordance with the chain-reaction principle. Another factor necessitating this adjustment was the need to bring the provisions of criminal law into line with practical realities. The excessive rigidity of the previously established threshold values had become apparent, which hindered the effective regulation of criminal legal relations. 

By the Law of the Republic of Kazakhstan “On Amendments and Additions to Certain Legislative Acts of the Republic of Kazakhstan on the Regulation of the Agro-Industrial Complex”, the concepts of particularly large damage and particularly large amount were supplemented with indicators of particularly large damage resulting from the illegal handling of rare and endangered, as well as prohibited-for-use, species of plants or animals, their parts or derivatives (Article 339 of the Criminal Code). This addition is related to the inclusion, among the particularly aggravating elements of the criminal offence provided for in Article 339 of the Criminal Code, of socially dangerous consequences in the form of causing particularly large damage.

In accordance with the Law of the Republic of Kazakhstan “On Amendments and Additions to Certain Legislative Acts of the Republic of Kazakhstan on Environmental Issues”, particularly large damage and particularly large amount under Articles 325, 326, 328, 335, 337, 340 and 342 of the Criminal Code shall mean the monetary value of the costs necessary to eliminate environmental damage or restore the consumer properties of natural resources, in an amount exceeding twenty thousand monthly calculation indices. These amendments shall enter into force on 1 July 2021.

4. Grave consequences — the following consequences, where they are not specified as an element of a criminal offence provided for by this Code:

death of a person; death of two or more persons; suicide of the victim or his/her close person(s); infliction of grievous bodily harm; infliction of grievous bodily harm on two or more persons; mass illness, infection, irradiation or poisoning of people; deterioration in the health of the population and the state of the environment; occurrence of an unwanted pregnancy; occurrence of a man-made or environmental disaster, or an environmental emergency; causing large or particularly large damage; failure to fulfil tasks assigned by the supreme command; creation of a threat to state security, a catastrophe or an accident; prolonged reduction in the level of combat readiness and combat capability of military units and subdivisions; failure to accomplish a combat mission, putting combat equipment out of action; and other consequences indicating the severity of the harm caused.

Grave consequences in the criminal-law sense are the most serious harm caused to legally protected interests, which characterises the socially dangerous consequences of an act.

For the first time, the Criminal Code of the Republic of Kazakhstan provides a definition of grave consequences, with the legislator employing the technique of listing their types without disclosing the essential substance and characteristic features of this category. At the same time, the list provided is not exhaustive, since grave consequences may also include any other consequences indicating the severity of the harm caused. Thus, despite the clarification undertaken, grave consequences should be classified as evaluative categories.

In the definition of grave consequences, the death of a person, the death of two or more persons and the subsequent items in the list are presented as independent elements. At the same time, if one of them is specified as an element of the corpus delicti of a criminal offence, it shall not be taken into account again as a grave consequence.

For example, Part 1 of Article 292 of the Criminal Code, “Violation of Fire Safety Requirements”, specifies grievous or moderate harm to health and large damage caused to a citizen, organisation or the State as mandatory elements; Part 2 specifies the death of a person and other grave consequences; Part 3 specifies the death of two or more persons. Consequently, in this case, grave consequences do not include large damage, grievous bodily harm, the death of a person or the death of two or more persons, but may include particularly large damage, that is, damage in an amount exceeding two thousand monthly calculation indices, grievous bodily harm caused to two or more persons, suicide of the victim and other elements.

The definition of biological death is provided in Article 153 of the Code of the Republic of Kazakhstan dated 7 July 2020, “On Public Health and the Healthcare System”. Biological death means the cessation of the vital activity of an organism, in which vital functions have irreversibly ceased. Biological death is determined by a medical professional on the basis of the combination of the following signs: cessation of cardiac activity; cessation of breathing; cessation of the functions of the central nervous system.

The term “close persons” should be understood to include close relatives, as well as persons connected by close personal relationships, friendship and love. According to subparagraph 13) of paragraph 1 of Article 1 of the Code of the Republic of Kazakhstan dated 26 December 2011, “On Marriage (Matrimony) and Family”, close relatives are parents (a parent), children, adoptive parents, adopted children, full and half brothers and sisters, grandfather, grandmother and grandchildren.

A similar concept is enshrined in subparagraph 11) of Article 7 of the Criminal Procedure Code of the Republic of Kazakhstan.

Mass illness among people means the widespread occurrence of a uniform disease caused by one or a stable combination of several mechanical, physical, chemical, biological or psychogenic factors, exceeding the normally recorded level of morbidity. To establish the existence of a threat of mass illness, it is sufficient to establish a direct causal relationship between the occurrence of the aetiological factors of mass illness and the socially dangerous act.

Mass illness is a case of mass illness among people of infectious or parasitic aetiology and is characterised by the possibility of transmission of the disease from an infected person to a healthy person.

Mass irradiation of people is the result of the pathogenic impact of ionising radiation on the human body or its individual organs, that is, radiation consisting of charged and uncharged particles and photons which, through interaction with the environment, form ions of different charges.

Mass poisoning of people is expressed in an illness (condition) arising from acute (simultaneous) or chronic (prolonged) exposure of a person to chemical, biological and other environmental factors.

To establish the presence of the element of mass occurrence, statistical confirmation that the normally recorded level of morbidity has been exceeded in a particular administrative-territorial unit, as well as in places where people gather permanently or periodically, including all types of transport, is sufficient.

Deterioration in the health of the population means a persistent adverse deviation from the norm in the physical and (or) mental well-being of the population of a particular administrative-territorial unit (village, settlement, rural district, district within a city, city, district or region).

Deterioration of the environment should be understood as a persistent adverse deviation from environmental quality standards, manifested in its pollution or degradation and depletion of natural resources.

In accordance with paragraph 1 of Article 150 of the Code of the Republic of Kazakhstan dated 7 July 2020, “On Public Health and the Healthcare System”, a woman has the right to artificial termination of pregnancy. The undesirability of pregnancy is determined by the woman herself.

The concepts of an environmental emergency and an environmental disaster are set out in the Environmental Code of the Republic of Kazakhstan dated 2 January 2021. According to paragraph 1 of Article 404 of the Environmental Code, an environmental emergency means an environmental situation that has arisen in an area of land or water where, as a result of anthropogenic activity or natural processes, persistent negative changes in the environment occur, threatening the life and (or) health of people, the state of natural ecological systems, and the genetic pools of plants and animals.

An environmental disaster, in accordance with paragraph 2 of Article 404 of the Environmental Code, means an environmental situation that has arisen in an area of land where, as a result of anthropogenic activity or natural processes, profound irreversible changes in the environment have occurred, resulting in a significant deterioration in public health, the destruction of natural ecological systems and (or) deterioration in the state of flora and fauna.

Environmental emergencies are classified, according to their nature of occurrence, into emergencies of natural and man-made origin. The concept of a man-made disaster is not defined in legislation; however, it should be understood as an environmental disaster caused by human activity rather than by natural processes.

Subparagraph 65) of Article 1 of the Law of the Republic of Kazakhstan dated 11 April 2014, “On Civil Protection”, defines man-made emergencies as emergencies caused by the harmful impact of hazardous production factors, transport and other accidents, fires (explosions), accidents involving the release (or threat of release) of highly potent toxic, radioactive and biologically hazardous substances, sudden collapse of buildings and structures, dam failures, accidents involving electric power and communication life-support systems, and wastewater treatment facilities.

A threat to public health means an increase in the frequency of reversible health disorders associated with environmental pollution.

A significant deterioration in public health means an increase in irreversible and life-incompatible health disorders, changes in the structure of causes of death and the emergence of specific diseases caused by environmental pollution, as well as a significant increase in the frequency of reversible health disorders associated with environmental pollution.

The classification of emergencies of natural and man-made origin was approved by Resolution of the Government of the Republic of Kazakhstan dated 2 July 2014, “On Establishing the Classification of Emergencies of Natural and Man-Made Origin”. According to this classification, emergencies of natural and man-made origin are divided into facility-level, local, regional and global emergencies.

An emergency of natural or man-made origin shall be classified as facility-level if, as a result of an accident, disaster or catastrophe, the emergency zone does not extend beyond the territory of the facility, and one of the following consequences has occurred or could have occurred:

death of more than 5 but not more than 10 persons;

disruption of the living conditions of more than 50 but not more than 100 persons;

the amount of material damage to human health, the environment and business facilities ranges from five thousand to fifteen thousand monthly calculation indices.

An emergency of natural or man-made origin shall be classified as local if, as a result of an accident, disaster or catastrophe, the emergency zone has extended beyond the territory of an industrial or social facility but does not extend beyond the boundaries of two districts of a region, and one of the following consequences has occurred or could have occurred:

death of more than 10 but not more than 50 persons;

disruption of the living conditions of more than 100 but not more than 500 persons;

the amount of material damage to human health, the environment and business facilities ranges from fifteen thousand to one hundred thousand monthly calculation indices.

An emergency of natural or man-made origin shall be classified as regional if, as a result of an accident, disaster or catastrophe, the emergency zone covers the territories of at least three districts within one region or the emergency occurs in the territories of two regions of the Republic of Kazakhstan, and one of the following consequences has occurred or could have occurred:

death of more than 50 but not more than 200 persons;

disruption of the living conditions of more than 500 but not more than 1,500 persons;

the amount of material damage to human health, the environment and business facilities ranges from one hundred thousand to two hundred thousand monthly calculation indices.

An emergency of natural or man-made origin shall be classified as global if the emergency occurs in the territories of three or more regions of the Republic of Kazakhstan or extends to the territories of neighbouring states, and one of the following consequences has occurred or could have occurred:

death of more than 200 persons;

disruption of the living conditions of more than 1,500 persons;

the amount of material damage to human health, the environment and business facilities exceeds two hundred thousand monthly calculation indices.

Causing large or particularly large damage is one of the harmful consequences recognised as grave.

In cases where large damage and particularly large damage are not specified as qualifying elements in an article of the Special Part of the Criminal Code, but material damage has been caused by a socially dangerous act provided for in that article, grave consequences should be understood as damage in an amount exceeding five hundred times the monthly calculation index.

If an article of the Special Part of the Criminal Code specifies the element of “large damage” but does not specify the element of “particularly large damage”, grave consequences should be understood as damage in an amount exceeding two thousand times the monthly calculation index.

Failure to fulfil tasks assigned by the supreme command, creation of a threat to state security, a catastrophe or an accident, prolonged reduction in the level of combat readiness and combat capability of military units and subdivisions, failure to accomplish a combat mission, and putting combat equipment out of action are classified as grave consequences of military criminal offences provided for in Chapter 18 of the Criminal Code. A number of the above concepts are defined by the Law of the Republic of Kazakhstan dated 7 January 2005, “On Defence and the Armed Forces of the Republic of Kazakhstan”.

Combat readiness is a state that determines the degree of preparedness of the Armed Forces, other troops and military formations to perform their assigned tasks within the prescribed time limits.

A combat mission is a task assigned by a superior commander (chief) to achieve a specific objective in battle (an operation) by a specified deadline.

The supreme command (senior command staff) includes the Minister of Defence of the Republic of Kazakhstan, his deputies, the commanders-in-chief of the branches of the Armed Forces of the Republic of Kazakhstan and other officials appointed by the President of the Republic of Kazakhstan.

Military equipment means combat vehicles, military ships (boats and other vessels), military aircraft and other flying vehicles with which the Armed Forces of the Republic of Kazakhstan, other troops and military formations are equipped.

The definition of the concept of “accident” is provided in the Law of the Republic of Kazakhstan “On Civil Protection” as the destruction of buildings, structures and (or) technical devices, uncontrolled explosions and (or) the release of hazardous substances.

5. Administrative and economic functions — the right, granted in accordance with the procedure established by the legislation of the Republic of Kazakhstan, to manage and dispose of property recorded on the balance sheet of an organisation

Administrative and economic functions are one of the types of functions whose performance determines a person holding an official position and a person performing managerial functions in a commercial or other organisation as special subjects of criminal offences.

In accordance with subparagraph 1) of Article 1 of the Law of the Republic of Kazakhstan dated 18 November 2015, “On Combating Corruption”, administrative and economic functions mean the right, granted in accordance with the procedure established by the legislation of the Republic of Kazakhstan, to manage and dispose of property recorded on the balance sheet of an organisation. This category of officials includes, for example, deputy heads of state bodies responsible for economic affairs, persons responsible for the safekeeping of material assets, and accountants.

Organisations include legal entities established in accordance with the legislation of the Republic of Kazakhstan, including state legal entities — state enterprises and state institutions.

According to subparagraph 25) of paragraph 1 of Article 4 of the Administrative Procedural and Process-Related Code of the Republic of Kazakhstan dated 29 June 2020, state bodies mean organisations of state authority 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 functions involving the issuance of acts establishing generally binding rules of conduct, the management and regulation of socially significant public relations, and control over compliance with the generally binding rules of conduct established by the State. It follows from this that all state bodies are established in the form of state institutions.

In accordance with Article 33 of the Civil Code of the Republic of Kazakhstan (General Part), a legal entity is an organisation which has separate property under the right of ownership, economic management or operational administration and is liable for its obligations with that property, may acquire and exercise property and personal non-property rights and obligations in its own name, and may act as a plaintiff and defendant in court. A legal entity must have an independent balance sheet or estimate.

According to Article 192 of the Civil Code of the Republic of Kazakhstan (General Part), property in state ownership may be assigned to state legal entities under the right of economic management or operational administration.

The right of disposal, according to Article 188 of the Civil Code of the Republic of Kazakhstan (General Part), constitutes a legally secured possibility of determining the legal fate of property.

According to subparagraph 18) of Article 1 of the Law of the Republic of Kazakhstan dated 1 March 2011, “On State Property”, management of state property means the exercise by the State (the Republic of Kazakhstan or an administrative-territorial unit) of the right of state ownership and other property rights.

The said Law establishes the legal framework for the management of state property, including property assigned to state legal entities and shares and participation interests owned by the State in the authorised capital of legal entities. In particular, it establishes that the rights of the subject of republican ownership in respect of the property of republican legal entities are exercised on behalf of the Republic of Kazakhstan by the authorised state property body, the National Bank of the Republic of Kazakhstan or another state body exercising the rights of the subject of republican ownership pursuant to a decision of the Government of the Republic of Kazakhstan.

Republican legal entities are managed by the authorised bodies of the respective sectors.

In respect of republican legal entities for which the Government has not designated an authorised body of the respective sector, as well as where the right of the authorised body of the respective sector to manage state legal entities is terminated, the functions of the authorised body of the respective sector are performed by the authorised state property body.

The rights of the subject of communal ownership in respect of communal legal entities are exercised by the local executive bodies of regions, cities of republican significance, the capital, districts and cities of regional significance.

The local executive body acts as the body responsible for managing communal legal entities of the respective administrative-territorial unit.

The management of district communal legal entities is transferred to the akims of towns of district significance, villages, settlements and rural districts by a decision of the local executive body of the district or city of regional significance.

The National Bank of the Republic of Kazakhstan, on behalf of the Republic of Kazakhstan, independently exercises the rights of possession, use and disposal in respect of the property assigned to it and recorded on its balance sheet, as well as manages the property of legal entities established by the National Bank of the Republic of Kazakhstan and regulates their activities.

6. Military criminal offences — acts provided for in Chapter 18 of this Code, directed against the established procedure for performing military service and committed by military personnel performing military service by conscription or under contract in the Armed Forces of the Republic of Kazakhstan, other troops and military formations of the Republic of Kazakhstan, as well as by citizens in the reserve during their participation in military training assemblies.

The concept of military criminal offences is based on the general definition of a crime and a criminal misdemeanour formulated in Article 10 of the Criminal Code. Accordingly, a criminal offence possesses such characteristics as social danger, criminal unlawfulness, guilt and punishability.

The social danger of military criminal offences is determined by the fact that they encroach upon public relations, interests and benefits existing in the Armed Forces and regulated by legislation, cause damage to them, and weaken military discipline and the combat readiness of the troops.

The criminal unlawfulness of military criminal offences consists in the contradiction of a socially dangerous act with the provisions and requirements of criminal law.

In accordance with Article 19 of the Criminal Code, an essential element of any criminal offence, including a military criminal offence, is guilt, that is, the commission of an act intentionally or through negligence. This means that a person is subject to criminal liability only for those socially dangerous acts (actions or omissions) and socially dangerous consequences that have occurred in respect of which that person's guilt has been established.

Part 2 of Article 19 of the Criminal Code provides that objective imputation, that is, criminal liability for the infliction of harm without guilt, is not permitted.

Punishability is a characteristic of a criminal offence that does not describe the essence of the act but indicates its inevitable legal consequence, the essence of which is that criminal punishment may be imposed for socially dangerous acts committed with guilt.

Subparagraph 6) of Article 3 of the Criminal Code identifies the following specific features (special characteristics) of military criminal offences:

1. the act is directed against the established procedure for performing military service;
2. the act is committed by military personnel or by citizens in the reserve during their participation in military training assemblies (special subject);
3. the act is punishable under criminal legislation providing for liability for military criminal offences.

Every military criminal offence is characterised by the combination of the above-mentioned special characteristics. In the absence of at least one of them, an act cannot be classified as a military crime (criminal misdemeanour).

Socially dangerous acts committed by military personnel that do not encroach upon the established procedure for performing military service do not constitute military criminal offences (for example, theft of citizens' property, encroachment upon the life and health of civilians). Such acts are subject to classification under the relevant articles of the Criminal Code of the Republic of Kazakhstan.

Acts committed in the course of their duties by workers and employees of the Armed Forces are not military criminal offences, even if they may cause damage to the interests of military units and institutions, since they are committed by persons who are not in military service. Where military personnel commit a criminal offence that violates the procedure for performing military service but is not provided for as a military criminal offence in Chapter 18 of the Criminal Code (for example, theft by a military serviceman of a weapon issued to him for official use), the act should be classified under the articles of the Criminal Code of the Republic of Kazakhstan providing for liability for criminal offences against public safety and public order (Article 291 of the Criminal Code, “Theft or Extortion of Weapons, Ammunition, Explosives and Explosive Devices”).

The object of military criminal offences is recognised as the public relations regulating the established procedure for performing military service in the Armed Forces, other troops and military formations of the Republic of Kazakhstan.

The procedure for performing military service constitutes a set of public relations, interests and benefits arising in the course of the life and combat activities of the troops and enshrined in laws, the military oath, military regulations, provisions governing the performance of service by various categories of military personnel and other legislative acts. This procedure is mandatory for all military personnel; strict and precise compliance with it constitutes military discipline and is a necessary condition for ensuring the constant combat readiness of the Armed Forces.

Each military criminal offence directly encroaches upon specific relations, interests and benefits that constitute a part (aspect) of the procedure for performing military service. These include relations between commanders and subordinates in the course of service, senior and junior military personnel in terms of military rank, and military personnel who are not in a relationship of subordination; the procedure for performing military service; the procedure for using military property and operating military equipment; the procedure for protecting military secrets and state secrets; the procedure for performing combat duty, guard duty and other special services, etc.

The objective element of military criminal offences is manifested through an act or omission.

An act is an active form of a person's conduct, for example, the acts provided for in Articles 440 and 442 of the Criminal Code, whereas an omission is a passive form of a person's conduct, for example, the acts provided for in Articles 437, 452 or 453 of the Criminal Code.

It should be borne in mind that the occurrence of socially dangerous consequences as a result of criminal actions (omissions) does not always constitute grounds for bringing a person to criminal liability, since an essential condition for bringing a person to criminal liability is the existence of a causal relationship between the socially dangerous actions and the socially dangerous consequences that have occurred. Causation is of significant importance in the classification of an offence.

The objective element of military criminal offences often includes characteristics describing the time and place of the commission of a socially dangerous act. The commission of a crime during wartime, in a combat situation or under a state of emergency, or on the battlefield, indicates the increased danger of a military criminal offence.

According to paragraph 3 of the Internal Service Regulations of the Armed Forces, other troops and military formations of the Republic of Kazakhstan, approved by Decree of the President of the Republic of Kazakhstan dated 5 July 2007, “On Approval of the General Military Regulations of the Armed Forces, Other Troops and Military Formations of the Republic of Kazakhstan”, in accordance with the legislation, the content and scope of the rights, duties and responsibilities of military personnel depend on whether they are performing military service duties (official duties) or not. Thus, an essential condition for criminal liability for military criminal offences is establishing whether military personnel were performing their military service duties at the time of committing the crime.

The issue of establishing the concept and characteristics of the performance of military service duties is of significant importance for the correct classification of the elements of military criminal offences.

According to the Law of the Republic of Kazakhstan dated 16 February 2012, “On Military Service and the Status of Military Personnel”, military personnel are under the protection of the State while performing their military service duties. They are subordinate only to persons who, in accordance with the general military regulations, are their commanders, and no one else has the right to interfere in their official activities, except in cases provided for by the laws of the Republic of Kazakhstan.

A military serviceman is considered to be performing military service duties in the following cases: performing official duties; participating in combat operations, carrying out tasks under a state of emergency or martial law, as well as in conditions of armed conflict; participating in peacekeeping operations to maintain peace and security; participating in counter-terrorism operations; participating in the elimination of emergencies; participating in field exercises (going to sea), taking part in military exercises or naval voyages; being within the territory of a military unit during official hours established by the daily routine or at another time if this is necessitated by official requirements; being on an official business trip; travelling to and from the place of service; receiving medical treatment, travelling to and from the place of treatment; participating in military training assemblies; being held captive, taken hostage or interned; providing assistance to law enforcement agencies in protecting human and civil rights and freedoms, maintaining law and order and ensuring public safety; being in the active reserve; undergoing advanced training, retraining, requalification, education or military internship; conducting research or participating in military and other trials.

The status of officers performing military service by conscription is determined by the status of military personnel performing military service under contract.

A conscript military serviceman is considered to be performing military service duties throughout the entire period of conscript service, while a person liable for military service is considered to be performing such duties throughout the entire period of participation in military training assemblies (paragraphs 2 and 3 of Article 5 of the above-mentioned Law).

Motive and purpose are formal characteristics of military criminal offences, but in certain elements of criminal offences they constitute mandatory characteristics of the subjective element of the crime. Thus, an essential element of the criminal offence provided for in Article 443 of the Criminal Code is a specific purpose: evading the performance of all or certain military service duties, for example, evading the obligation to report for duty in a detail or guard, etc. In this case, motives, unlike purpose, do not affect the classification of the crime but may be taken into account when imposing punishment.

In accordance with paragraph 14 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated 28 October 2005, “On Judicial Practice in Cases Involving Military Criminal Offences”, an essential characteristic of the subjective element of the criminal offence provided for in Article 441 of the Criminal Code is the offender's intent to temporarily leave the military unit or place of service, or to remain outside its boundaries, and the existence of the desire to return to the military unit or place of service in order to continue performing military service.

At the same time, unauthorised abandonment of a military unit or place of service must be distinguished from desertion, bearing in mind that in the case of desertion, the offender's purpose is to evade military service altogether, whereas unauthorised abandonment of a military unit is committed with the purpose of evading military service temporarily.

The motives may vary: unwillingness to endure the hardships and deprivations of military service, fear of liability for a committed misdemeanour or crime, etc. However, according to the above-mentioned Regulatory Resolution of the Supreme Court, the motives and duration of evasion of service in the case of desertion do not affect the classification of the criminal offence.

In accordance with paragraph 2 of the above-mentioned Regulatory Resolution, the subjects of military criminal offences are only military personnel performing military service by conscription or under contract in the Armed Forces, other troops and military formations, as well as citizens in the reserve during their participation in military training assemblies.

A person is subject to criminal liability for military criminal offences even after the completion of military service, provided that the acts were committed during the period of military service and the limitation periods for bringing the person to criminal liability have not expired.

The determining characteristics of the subject of a military criminal offence are the offender's affiliation with military service, as well as such circumstances as the offender's age, state of health, lawfulness of the offender's presence in military service, and the commencement and termination of military service.

In accordance with the Law of the Republic of Kazakhstan “On Military Service and the Status of Military Personnel”, citizens acquire the status of military personnel as follows: persons called up for military service (training assemblies) — from the date of issuance of the order by the relevant superior for their departure from the local military administration body to the place of military service (training assemblies); persons entering military service under contract — from the date of issuance of the order by the commander (chief) of the military unit (institution) enrolling them in the personnel list of the unit; persons admitted to military educational institutions implementing technical and vocational, post-secondary and higher education programmes, if they were not previously military personnel — in the case of military educational institutions, from the date of issuance of the order by the head of the military educational institution enrolling them in the training personnel list, with the exception of ulans, and in the case of admission to a foreign military educational institution — from the date of issuance of the order by the head of the authorised body assigning them to study; ulans who have completed the second year of study at military educational institutions implementing technical and vocational education programmes on the basis of basic secondary education — from the date of issuance of the order by the head of the military educational institution to continue their studies, transfer them to the third year and appoint them to a military position within the variable composition of cadets.

A citizen loses the status of military personnel from the date of their removal from the military unit's personnel list in connection with dismissal from military service (completion of military training assemblies), as well as in the event of transfer to special state and law enforcement bodies of the Republic of Kazakhstan.

Military personnel who have been captured or interned in neutral countries retain their status as military personnel, and the military command and other duly authorised state bodies are obliged to take measures to protect the rights of such military personnel in accordance with the rules of international law.

Where military personnel are sentenced to imprisonment, the exercise of their rights provided for by their status as military personnel, as well as the rights of their family members, shall be suspended (terminated) or restricted in accordance with the procedure established by law.

For a person to be recognised as the subject of a military criminal offence, the fact of whether that person has taken the military oath is irrelevant. Failure to take the oath at the time of committing a military crime (misdemeanour) may be considered a mitigating circumstance in respect of criminal liability.

According to Article 31 of the Law of the Republic of Kazakhstan “On Military Service and the Status of Military Personnel”, citizens aged between eighteen and twenty-seven who are not entitled to deferment or exemption from conscription are subject to conscription for compulsory military service in the numbers necessary to man the Armed Forces, other troops and military formations.

Persons entering military service under contract must be at least eighteen years of age, with the exception of cadets, and must not exceed the maximum age for military service by more than the following periods: fifteen years for persons entering military service under contract for the first time or appointed to positions within the ranks of soldiers (sailors) and junior sergeant personnel; ten years for persons appointed to positions within the junior officer and senior sergeant personnel; five years for persons appointed to positions within the senior officer or highest sergeant personnel (subparagraph 3) of paragraph 1 of Article 38 of the above-mentioned Law).

 Translation into English

Military educational institutions implementing educational programmes of higher, technical and vocational education on the basis of general secondary education shall have the right to admit:

1. citizens who have not undergone military service, who have reached the age of seventeen in the year of admission but are not older than twenty-two;

2. citizens who have undergone military service and military personnel undergoing compulsory military service, provided that they have not reached the age of twenty-four in the year of admission;

3. military personnel undergoing military service under contract, provided that they have not reached the age of twenty-five (paragraph 1 of Article 39 of the aforementioned Law).

The right to enter military educational institutions implementing technical and vocational education programmes on the basis of basic secondary education shall be granted to citizens who have reached the age of fifteen in the year of admission but are not older than seventeen (paragraph 2 of Article 39 of the aforementioned Law).

Consequently, the commission of a military criminal offence by a person who has not attained the requisite age shall not constitute grounds for bringing that person to criminal liability for such socially dangerous conduct.

Military personnel shall be discharged from military service on the grounds specified in Article 26 of the Law of the Republic of Kazakhstan «On Military Service and the Status of Military Personnel». The procedure for discharge from military service is regulated by the Decree of the President of the Republic of Kazakhstan dated 25 May 2006 «On Approval of the Rules for Performing Military Service in the Armed Forces, Other Troops and Military Formations of the Republic of Kazakhstan».

A military serviceman who has died (been killed) shall be removed from the personnel list of the military unit on the day following the date of death (killing), whereas a military serviceman declared missing or pronounced dead by a court shall be removed from the list from the date on which the court decision enters into legal force.

The discharge from military service of persons who have completed the established periods of service shall be suspended for the duration of a state of emergency or martial law.

Certain military criminal offences may be committed not by every military serviceman, but only by persons possessing specific special characteristics.

For example, the military criminal offences provided for in Articles 450–453 of the Criminal Code may be committed only by commanders and other officials; the acts provided for in Article 437 of the Criminal Code may be committed only by subordinates. The subjects of the criminal offences provided for in Articles 446, 447 and 448 of the Criminal Code are exclusively persons forming part of a guard (watch), convoy or patrol unit, as well as persons forming part of military duty supervisory units. In such cases, in order to bring a person to criminal liability under one or another article of the Criminal Code, it is necessary to establish whether that person possessed the relevant special characteristics.

Pursuant to paragraph 1 of Article 29 of the Law «On Military Service and the Status of Military Personnel», permanent medical commissions shall be established in the regions, cities of republican significance, the capital, cities and districts by decisions of local executive bodies for the purpose of determining the degree of fitness of citizens for military service. They shall conduct medical examinations of the following persons: citizens of pre-conscription age; conscripts; persons liable for military service called up for military training; citizens entering military service under contract, military educational institutions, military departments, and specialised organisations of the Ministry of Defence.

Based on the results of the medical examination, the district conscription commission (or the commission of a city of regional significance) shall adopt one of the following decisions in respect of a conscript: that the person is subject to conscription for military service; that a deferment from conscription for military service is granted; that the person is exempt from conscription for military service; or that the person is exempt from the performance of military duties.

Recognition of a person who has committed a criminal offence provided for in Chapter 18 of the Criminal Code as unfit for military service shall not exempt that person from criminal liability. The person's unfitness for military service shall be taken into account as a mitigating circumstance. At the same time, there may be cases where the act committed is a direct consequence of the illness or physical disability of a person recognised as unfit for military service (for example, a sentry falling asleep at a post due to pathological drowsiness that cannot be overcome). In such cases, the act is committed without guilt and does not constitute the elements of a military criminal offence.

Civilians cannot be perpetrators of military criminal offences; however, they may act as instigators, accomplices or organisers thereof (for example, assisting in evading or refusing to perform military service by feigning illness or inflicting bodily injury upon oneself shall be classified under Part 5 of Article 28 and Article 443 of the Criminal Code; instigating the intentional destruction of or damage to military property shall be classified under Part 4 of Article 28 and Article 459 of the Criminal Code).

Persons who are not military personnel cannot be co-perpetrators of a military criminal offence either. If a civilian, together with a military serviceman, uses force to resist a patrol unit while detaining a soldier who has violated the established procedure, the civilian's actions shall not be recognised as co-perpetration but as complicity and shall be classified under Article 438 of the Criminal Code, with reference to Part 5 of Article 28 of the Criminal Code.

For all categories of military personnel, the date on which military service ends shall be considered the date on which the military serviceman is removed from the personnel list of the military unit.

7. Gang — an organised group established for the purpose of attacking citizens or organisations using weapons or objects used as weapons, or threatening to use them.

A gang shall be understood as a stable armed group of two or more persons who have united in advance for the purpose of attacking citizens or organisations using weapons or objects used as weapons, or threatening to use them.

A gang differs from an organised group in its armed nature and its criminal purpose, namely, attacking citizens and organisations. A gang is one of the specific forms of organised crime and is characterised by the following features: the participation of two or more persons, stability, being armed, and the existence of the specific purpose of attacking citizens or organisations.

In paragraph 11 of its Regulatory Resolution dated 21 June 2001 «On Certain Issues of the Application by Courts of Legislation on Liability for Banditry and Other Criminal Offences Committed in Complicity», the Supreme Court of the Republic of Kazakhstan explains that the commission of a number of crimes by a group of persons acting in prior conspiracy, through coordinated actions over a certain period of time and using established forms and methods of criminal activity, does not constitute sufficient grounds for recognising the existence of a criminal group.

A criminal group differs from a group of persons acting in prior conspiracy by a higher degree of organisation and stability. Its characteristics may include, in particular, the existence of a leader (leaders) and the subordination of other members to him (them), the awareness of the other participants of their membership in the group, the existence of a certain hierarchy and common material and financial resources, compliance with the rules (discipline) established within the criminal group, and so forth.

In accordance with the requirements of Article 113 of the Criminal Procedure Code of the Republic of Kazakhstan, the characteristics of a criminal group, alongside other elements of the corpus delicti, are subject to proof. The mandatory characteristic of a gang is that it is armed. This means that gang members possess firearms or cold weapons, factory-made or homemade weapons, explosive devices, as well as gas and pneumatic weapons.

The definition of the concept of a weapon is provided in the Law of the Republic of Kazakhstan dated 30 December 1998 «On State Control over the Circulation of Certain Types of Weapons». According to this Law, weapons are devices and objects structurally designed to inflict damage on a living or other target, as well as to give signals. Objects used as weapons include clubs, brass knuckles, shuriken, boomerangs and other objects specially adapted for striking, throwing, stabbing or cutting, excluding sports equipment (for example, baseball bats, hockey sticks, discs, shot puts and dumbbells).

The armed nature of a gang is established by the fact that at least one of its members possesses a weapon or an object used as a weapon and that the other members are aware of this.

For other types of organised groups, the characteristic of being armed is optional. At the same time, the purpose of establishing a gang distinguishes it from other forms of organised crime. Furthermore, where the characteristic of structural organisation is present, a gang may be recognised as a criminal organisation as a specific case of the general concept, since a criminal organisation is an organised group whose participants are divided into organisationally, functionally and (or) territorially separate groups (structural subdivisions).

8. Other mechanical vehicles — tractors, motorcycles, self-propelled machines (excavators, truck cranes, graders, road rollers).

According to subparagraph 38) of Article 1 of the Law of the Republic of Kazakhstan dated 17 April 2014 «On Road Traffic», a mechanical vehicle is a self-propelled road vehicle driven by an engine, excluding mopeds and rail vehicles. This concept also applies to tractors and self-propelled machines when participating in road traffic.

The legislator uses the concept of «other mechanical vehicles» in the dispositions of Article 345 of the Criminal Code, «Violation of Traffic Rules or Rules for the Operation of Vehicles by Persons Driving Vehicles», and Article 345-1 of the Criminal Code, «Violation of Traffic Rules or Rules for the Operation of Vehicles by Persons Driving Vehicles While Intoxicated by Alcohol, Narcotic Drugs and (or) Other Substances». Other mechanical vehicles include tractors, motorcycles and self-propelled machines (excavators, truck cranes, graders and road rollers).

9. Representative of authority — a person in public service who, in accordance with the procedure established by the legislation of the Republic of Kazakhstan, is vested with administrative powers in relation to persons who are not subordinate to him in the course of service, including an employee of a law enforcement or special state body, an employee of the military police, or a military serviceman participating in ensuring public order.

A representative of authority is a special subject of official criminal offences and is also the object of criminal offences under Articles 272 «Mass Riots», 293 «Hooliganism», 378 «Insulting a Representative of Authority», 379 «Disobedience to a Representative of Authority», 380 «Use of Violence against a Representative of Authority» and 390 «Arbitrary Assumption of the Title of a Representative of Authority or a Person Holding a Responsible Public Position» of the Criminal Code.

Only an official of a state body vested with powers of authority in relation to citizens and organisations within the limits of the competence established by law may be recognised as a representative of authority. For example, a representative of authority has the right to issue requirements and adopt decisions that are binding upon citizens and organisations.

Representatives of authority perform the functions of state power (legislative, executive and judicial).

In accordance with Article 49 of the Constitution, the Parliament of the Republic of Kazakhstan is the highest representative body of the Republic exercising legislative functions. In territorial entities, the representative bodies of the legislative branch of government are the regional, city and district maslikhats. Within their competence, they are entitled to adopt binding decisions applicable within the territory concerned.

Pursuant to Article 64 of the Constitution, executive power in the Republic of Kazakhstan is exercised by the Government. The Government heads the system of executive bodies and directs their activities. Executive power entities also include state bodies directly subordinate and accountable to the President.

In accordance with Article 75 of the Constitution, justice in the Republic of Kazakhstan shall be administered exclusively by the courts. As stipulated in the Constitutional Law of the Republic of Kazakhstan dated 25 December 2000 «On the Judicial System and Status of Judges of the Republic of Kazakhstan», judicial power shall be exercised exclusively by the courts and is intended to protect the rights, freedoms and legitimate interests of citizens, state bodies and organisations, and to ensure the implementation of the Constitution, laws, other regulatory legal acts and international treaties of the Republic.

Technical employees performing auxiliary functions in legislative, executive and judicial authorities cannot be recognised as representatives of authority; however, they may be recognised as officials if they perform organisational and administrative or administrative and economic functions. Such employees may include accountants, secretaries, office managers, consultants and advisers.

A conclusion as to whether a particular employee of a state body is a representative of authority must be made after analysing that employee's powers and comparing them with the laws and regulations, as well as departmental regulatory acts, governing the rights and duties of employees of state bodies, services, committees and departments. In some cases, the law directly specifies that an employee is a representative of authority.

By specifying the category of representatives of authority, the legislator unequivocally includes therein all employees of law enforcement bodies (prosecutor's offices, internal affairs bodies, state fire-fighting services, anti-corruption services and economic investigation services), special state bodies (national security bodies, the authorised body in the field of foreign intelligence, and the State Security Service of the Republic of Kazakhstan), military police bodies, as well as military personnel participating in ensuring public order.

10. Insignificant amount — under Article 187, the value of property belonging to an organisation does not exceed ten monthly calculation indices, or the value of property belonging to an individual does not exceed two monthly calculation indices.

If the value of stolen property does not exceed ten monthly calculation indices in the case of property belonging to an organisation or two monthly calculation indices in the case of property belonging to an individual, the theft of another person's property, fraud, misappropriation or embezzlement shall be classified as petty embezzlement.

When giving a criminal-law assessment of petty embezzlement, the issue of distinguishing it from an act of insignificant importance may arise in practice.

Acts of insignificant importance shall be understood as acts that do not pose a public danger but formally contain the elements of a criminal offence.

There are three subjective factors involved in assessing the insignificance of an act: the assessment of the victim, the perpetrator and a third party, including the investigator, prosecutor or judge. Only the objective assessment of the victim, which is not influenced by emotions, bias or suggestion, has legal significance. If, in a petty embezzlement case, the victim considers the damage caused to him to be insignificant, criminal liability shall not arise.

Irrespective of the victim's position, if the value of the stolen property exceeds the insignificant amount, the act cannot be recognised as insignificant. The relevant act shall be classified as theft, fraud or misappropriation and embezzlement of another person's property under Articles 188, 189 and 190 of the Criminal Code.

11. Infliction of serious harm to health — harm to health that is dangerous to human life or other harm to health that has resulted in the following consequences: loss of vision, speech or hearing, or the loss of any organ; loss by an organ of its functions; irreversible disfigurement of the face; a health disorder resulting in a significant permanent loss of at least one third of general working capacity; complete loss of professional working capacity; termination of pregnancy; mental disorder; or the development of drug addiction or substance dependence.

In criminal-law terms, harm to health characterises the socially dangerous consequences of an act and means damage caused directly to a person's physical and psychophysical condition.

According to subparagraph 73) of paragraph 1 of Article 1 of the Code of the Republic of Kazakhstan dated 7 July 2020 «On Public Health and the Healthcare System», health should be understood not merely as the absence of diseases and physical disabilities, but as a state of complete physical, spiritual (mental) and social well-being.

In accordance with paragraph 383 of the Rules for the Organisation and Conduct of Forensic Examinations and Studies in Forensic Examination Bodies, approved by Order No. 484 of the Minister of Justice of the Republic of Kazakhstan dated 27 April 2017, harm to health is understood as a disruption of the anatomical integrity of organs (tissues) or their physiological functions (bodily injuries), or diseases or pathological conditions arising as a result of exposure to various external factors: mechanical, physical, chemical, biological or psychogenic; as well as consequences arising from deficiencies in the provision of medical care that have resulted in a health disorder or death.

The degree of severity of harm caused to health shall be established on the basis of an expert opinion obtained in accordance with the Rules for the Organisation and Conduct of Forensic Examinations and Studies in Forensic Examination Bodies, approved by Order No. 484 of the Minister of Justice of the Republic of Kazakhstan dated 27 April 2017.

Harm to health may manifest itself in the form of bodily injuries, that is, a disruption of the anatomical integrity of organs (tissues) or their physiological functions, or diseases or pathological conditions arising as a result of exposure to external mechanical, physical, chemical, biological or psychogenic factors.

For the purpose of determining the degree of severity of harm caused to health, the presence of any one of the characteristics of such harm shall be sufficient.

Where several qualifying characteristics are present, the degree of severity of the harm caused to health shall be determined according to the characteristic corresponding to the more serious degree of harm to health.

A health disorder shall be understood as a condition of the body in which clinically evident painful changes of a local and (or) general nature are identified in connection with a specific injury or disease, that is, a disruption of the anatomical integrity of organs or their physiological functions (paragraph 384 of the aforementioned Rules).

General working capacity shall be understood as the aggregate of a person's innate and acquired abilities aimed at achieving a socially significant result in the form of obtaining a particular product, item or service (paragraph 385).

Permanent loss of general working capacity is an irreversible loss of function (functions) resulting in the complete or partial loss of a person's ability to perform work that does not require qualifications and to provide self-care (paragraph 387).

If the final outcome has not been established within 120 days, the conditionally permanent (irreversible) loss of general working capacity shall be determined by calculating the extent of the lost function that has developed in the victim after the expiry of the specified period (paragraph 388).

The criterion of loss of general working capacity shall apply where the labour and clinical prognoses are unfavourable, or where the outcome has been established irrespective of the period of limitation of working capacity, or where the health disorder lasts for more than 120 days (hereinafter referred to as permanent loss of general working capacity) (paragraph 389).

Professional working capacity shall be understood as a person's ability to work in their profession or in employment equivalent thereto in terms of remuneration and qualifications (paragraph 386).

12. Infliction of harm of moderate severity to health — harm to health that is not dangerous to human life and has caused a long-term health disorder (for a period exceeding twenty-one days) or a significant permanent loss of general working capacity (to an extent of less than one third).

The criteria for determining the degree of moderate severity of harm caused to health were previously set out in the Instruction on the Organisation of Forensic Medical Examinations, approved by Order of the Minister of Healthcare of the Republic of Kazakhstan dated 20 May 2010. The qualifying characteristics (criteria) of the infliction of harm of moderate severity to health were as follows: 1) a long-term health disorder lasting more than three weeks (more than twenty-one days); a long-term health disorder included consequences directly related to the infliction of harm to health, in the form of an illness or impairment of the function of any organ lasting more than three weeks (more than twenty-one days); 2) a significant permanent loss of general working capacity (from 10 to 33 per cent inclusive).

The aforementioned Order ceased to be in force in connection with the issuance of Order No. 484 of the Minister of Justice of the Republic of Kazakhstan dated 27 April 2017. The Rules for the Organisation and Conduct of Forensic Examinations and Studies in Forensic Examination Bodies approved by that Order do not contain criteria for determining the degree of moderate severity of harm caused to health.

It should be noted that, at present, the degree of severity of harm caused to health is determined on the basis of the Methodology «Expert Examination of Victims, Suspects and Other Persons for the Purpose of Determining the Degree of Severity of Harm Caused to Health», approved by Protocol No. 2 of the Scientific Council of the Forensic Examination Centre of the Ministry of Justice of the Republic of Kazakhstan dated 5 December 2016 and entered into the Register of the Republic of Kazakhstan under No. 52. This Methodology has not been formally approved; it has only been endorsed by the Scientific Council of the Forensic Examination Centre.

It is considered appropriate to develop an instruction on determining the degree of severity of harm caused to health and approve it at the level of a Resolution of the Government of the Republic of Kazakhstan; an even more suitable solution would be to adopt a special law regulating these matters.

Since investigative and judicial practice is replete with numerous examples of differing interpretations when resolving issues relating to the types of harm caused to health, one can only hope that, in the future, the Supreme Court of the Republic of Kazakhstan will adopt a Regulatory Resolution «On Judicial Practice in Criminal Cases Involving Criminal Offences against Health». It is believed that such a resolution would help prevent numerous errors in the classification of the offences under consideration and ensure uniformity in their assessment.

13. Infliction of minor harm to health — harm caused to a person's health that has resulted in a short-term health disorder (for a period not exceeding twenty-one days) or a minor permanent loss of general working capacity (to an extent of less than one tenth).

The criteria for determining the degree of minor severity of harm caused to health were previously set out in the Instruction on the Organisation of Forensic Medical Examinations, approved by Order of the Minister of Healthcare of the Republic of Kazakhstan dated 20 May 2010. The qualifying characteristics (criteria) of the infliction of minor harm to health were as follows: 1) a short-term health disorder lasting no more than three weeks, that is, no more than twenty-one days; 2) a minor permanent loss of general working capacity of less than 10 per cent.

At present, the aforementioned Order has ceased to be in force in connection with the issuance of Order No. 484 of the Minister of Justice of the Republic of Kazakhstan dated 27 April 2017. The Rules for the Organisation and Conduct of Forensic Examinations and Studies in Forensic Examination Bodies approved by that Order do not contain criteria for determining the degree of minor severity of harm caused to health. Currently, these criteria are set out in the Methodology «Expert Examination of Victims, Suspects and Other Persons for the Purpose of Determining the Degree of Severity of Harm Caused to Health», entered into the Register of the Republic of Kazakhstan under No. 52.

The content of the aforementioned Methodology and the right to use it fall within the exclusive competence of forensic medical experts. The said Methodology is not publicly accessible.

14. Significant harm — in cases where it is not specified as an element of the corpus delicti provided for by this Code, the following consequences:

violation of the constitutional rights and freedoms of individuals and citizens, the legally protected rights and legitimate interests of organisations, and the legally protected interests of society and the State; causing substantial damage; the emergence of a difficult life situation for the victim; disruption of the normal functioning of organisations or state bodies; disruption of important military activities or a short-term decrease in the level of combat readiness and combat capability of military units and subdivisions; failure to detect or repel in a timely manner an attack by armed groups or individual armed persons, or by ground, air or naval military equipment; allowing persons and vehicles to cross the State Border of the Republic of Kazakhstan unlawfully and without hindrance; allowing the movement of smuggled goods; allowing actions that damage border structures or technical border protection equipment; and other consequences indicating the significance of the harm caused.

In criminal-law terms, significant harm is the most common type of damage caused to legally protected interests, characterising the socially dangerous consequences of an act.

For the first time in the Criminal Code of the Republic of Kazakhstan, the legislator has provided a definition of significant harm by listing its types, without disclosing the substantive aspect and characteristic features of this category. At the same time, the list provided is not exhaustive, since significant harm may also include any other consequences indicating the significance of the harm caused. Thus, despite the attempt to specify the concept, significant harm should still be regarded as an evaluative category.

When determining significant harm, the violation of the constitutional rights and freedoms of individuals and citizens, the legally protected rights and legitimate interests of organisations, and the legally protected interests of society and the State, as well as the infliction of substantial damage and the other circumstances listed below, are presented as independent characteristics.

At the same time, if one of these circumstances is specified as an element of the corpus delicti, it shall not be counted again as significant harm. For example, Part 2 of Article 198 of the Criminal Code, «Violation of Copyright and (or) Related Rights», specifies significant harm and substantial damage as qualifying characteristics. Consequently, in this case, significant harm does not include substantial damage, but may include, in particular, a violation of the rights and legitimate interests of organisations.

Violation of the constitutional rights and freedoms of individuals and citizens, the legally protected rights and legitimate interests of organisations, and the legally protected interests of society and the State is one of the harmful consequences of a criminally punishable act recognised as causing significant harm.

The substantive content of a violation of the constitutional rights and freedoms of individuals and citizens, the legally protected rights and legitimate interests of organisations, and the legally protected interests of society and the State shall be determined in each specific case, depending on the generic object and characteristics of the relevant article of the Special Part of the Criminal Code.

In certain articles of the Special Part of the Criminal Code of the Republic of Kazakhstan, the legislator specifies the object to which harm is caused. For example, the rights of individuals are singled out as the object of criminal offences in Articles 147, «Violation of Privacy and the Legislation of the Republic of Kazakhstan on Personal Data and Their Protection», and 152, «Violation of the Labour Legislation of the Republic of Kazakhstan». Significant harm to the rights or legitimate interests of an author or another rights holder is specified in Articles 198, «Violation of Copyright and (or) Related Rights», and 199, «Violation of Rights to Inventions, Utility Models, Industrial Designs, Selection Achievements or Integrated Circuit Topographies». Significant harm to the interests of service, the interests of the State or even the interests of State security is specified in Articles 437, «Disobedience to an Order or Other Failure to Comply with an Order», 444, «Violation of the Rules for Performing Combat Duty», and 445, «Violation of the Rules for Guarding the State Border of the Republic of Kazakhstan». Accordingly, in the cases indicated, causing harm to other objects is irrelevant for the classification of the act.

The infliction of substantial damage is one of the harmful consequences of a criminally punishable act recognised as causing significant harm.

One of the criteria for recognising harm as significant is the emergence of a difficult life situation for the victim. The definition of a difficult life situation is provided in subparagraph 8) of Article 1 of the Law of the Republic of Kazakhstan dated 29 December 2008 «On Special Social Services». Under this definition, it is regarded as a situation that, on the grounds provided for by that Law, is objectively recognised as disrupting a person's normal life activities and that the person is unable to overcome independently.

Among the circumstances specified in Article 6 of the aforementioned Law that constitute grounds for recognising a person as being in a difficult life situation, only four are relevant for the purposes of criminal-law assessment: orphanhood; being left without parental care; neglect of minors, including minors with deviant behaviour; and homelessness (persons with no known place of residence).

Disruption of the normal functioning of organisations or state bodies shall be understood as the occurrence, as a result of the commission of a criminal offence, of circumstances that objectively impede the continuation of the organisation's principal activities, for example, the conduct of entrepreneurial activity or the performance of state functions, or significantly reduce labour productivity.

Disruption of important military activities, a short-term decrease in the level of combat readiness and combat capability of military units and subdivisions, failure to detect or repel in a timely manner an attack by armed groups or individual armed persons, or by ground, air or naval military equipment, allowing persons and vehicles to cross the State Border of the Republic of Kazakhstan unlawfully and without hindrance, allowing the movement of smuggled goods, and allowing actions that damage border structures or technical border protection equipment constitute significant harmful consequences of military criminal offences provided for in Chapter 18 of the Criminal Code.

15. Mercenary — a person who is specially recruited to participate in an armed conflict, hostilities or other violent actions aimed at overthrowing or undermining the constitutional order or violating the territorial integrity of a State, acts for the purpose of obtaining material remuneration or other personal benefit, is not a citizen of a party to the conflict or of the State against which the aforementioned actions are directed, is not a member of the personnel of the armed forces of a party to the conflict, and has not been sent by another State to perform official duties as a member of its armed forces.

The term «mercenary» is used in Articles 170, «Mercenarism», and 171, «Establishment of Bases (Camps) for the Training of Mercenaries», of the Criminal Code of the Republic of Kazakhstan.

In international law, the term «mercenary» is used in the 1949 Geneva Conventions for the Protection of War Victims and the Additional Protocols I and II thereto of 1977, to which the Republic of Kazakhstan acceded on 31 March 1993.

According to Article 47 of Additional Protocol I of 8 June 1977, relating to the Protection of Victims of International Armed Conflicts, a mercenary is any person who:

has been specially recruited locally or abroad in order to fight in an armed conflict;

does, in fact, take a direct part in the hostilities;

is motivated to take part in the hostilities essentially by the desire for private gain and is promised, by or on behalf of a party to the conflict, material compensation substantially in excess of that promised or paid to combatants of similar ranks and functions in the armed forces of that party;

is neither a national of a party to the conflict nor a resident of territory controlled by a party to the conflict;

is not a member of the armed forces of a party to the conflict; and

has not been sent by a State which is not a party to the conflict on official duty as a member of its armed forces.

The definition formulated in the paragraph under consideration corresponds in substance to the international definition.

16. A person holding a responsible public position — a person holding a position established by the Constitution of the Republic of Kazakhstan, the constitutional laws and other laws of the Republic of Kazakhstan for the direct exercise of the functions of the State and the powers of state bodies, including a Member of Parliament or a judge, as well as a person holding a political public position or an administrative public position of category «A» in accordance with the legislation of the Republic of Kazakhstan on public service.

A person holding a responsible public position is a special subject of corruption-related criminal offences, and liability for offences committed in connection with their official duties is generally more severe.

The legislator includes Members of Parliament and judges in this category. It should be noted that, by the Law of the Republic of Kazakhstan dated 19 December 2020 «On Amendments and Additions to Certain Legislative Acts of the Republic of Kazakhstan on Strengthening the Protection of Citizens' Rights in Criminal Proceedings and Combating Corruption», a special qualifying characteristic in the form of the commission of the acts provided for in Articles 361, 364, 365, 366, 369 and 370 of Chapter 15 of the Criminal Code, «Corruption-Related and Other Criminal Offences against the Interests of Public Service and Public Administration», by «a person holding a responsible public position in a law enforcement body or a judge» was introduced. Thus, the legislator singled out a judge as an independent subject of the offence alongside persons holding responsible public positions in law enforcement bodies. At the same time, it should be noted that, pursuant to subparagraph 16) of Article 3 of the Criminal Code, a judge is himself classified as a person holding a responsible public position. Apparently, the legislator should eliminate this contradiction and remove judges from subparagraph 16) of Article 3.

The category of persons holding responsible public positions also includes persons holding political public positions or administrative public positions in accordance with the legislation of the Republic of Kazakhstan on public service.

According to subparagraph 16) of Article 1 of the Law of the Republic of Kazakhstan dated 23 November 2015 «On Public Service of the Republic of Kazakhstan», a political civil servant is a civil servant whose appointment (election), dismissal and activities are political and determining in nature, and who is responsible for implementing political goals and objectives.

An administrative civil servant is a civil servant who performs his or her activities on a permanent professional basis, except in cases provided for by the laws of the Republic of Kazakhstan and acts of the President of the Republic of Kazakhstan (subparagraph 10) of Article 1 of the aforementioned Law).

Public positions of civil servants shall be established in accordance with the Constitution, laws and acts of the President of the Republic of Kazakhstan, as well as other regulatory legal acts of the Republic of Kazakhstan.

Categories of public positions shall be established for administrative civil servants. Categories of public positions shall not be established for political civil servants (Article 7 of the aforementioned Law).

The Register of Positions of Political and Administrative Civil Servants shall be approved by the President of the Republic of Kazakhstan upon the proposal of the authorised body.

In accordance with the Decree of the President of the Republic of Kazakhstan dated 29 December 2015 «On Approval of the Register of Positions of Political and Administrative Civil Servants», political public positions include: the Prime Minister of the Republic of Kazakhstan, his First Deputy and Deputies; the State Secretary of the Republic of Kazakhstan, the Head of the Administration of the President of the Republic of Kazakhstan, the Head of the Office of the First President of the Republic of Kazakhstan — Elbasy, the First Deputy and Deputies of the Head of the Administration of the President of the Republic of Kazakhstan, and the Deputies of the Head of the Office of the First President of the Republic of Kazakhstan — Elbasy; the Chairperson and members of the Constitutional Council of the Republic of Kazakhstan; the Chairperson, Deputy Chairperson, Secretary and members of the Central Election Commission of the Republic of Kazakhstan; the Assistant to the President of the Republic of Kazakhstan — Secretary of the Security Council, his First Deputy and Deputies; the Chairperson of the Supreme Judicial Council of the Republic of Kazakhstan; the Chairperson and members of the Accounts Committee for Control over the Execution of the Republican Budget; the Head of the Office of the President of the Republic of Kazakhstan and his Deputies; Assistants to the President of the Republic of Kazakhstan; Assistants to the First President of the Republic of Kazakhstan — Elbasy; Advisers to the President of the Republic of Kazakhstan; Advisers to the First President of the Republic of Kazakhstan — Elbasy; heads of state bodies directly subordinate and accountable to the President of the Republic of Kazakhstan, their First Deputies and Deputies; ministers of the Republic of Kazakhstan, their First Deputies and Deputies; akims of regions, cities of republican significance and the capital, their First Deputies and Deputies; ambassadors extraordinary and plenipotentiary of the Republic of Kazakhstan; permanent representatives of the Republic of Kazakhstan to international organisations; plenipotentiary representatives of the Republic of Kazakhstan to international organisations; the Head of the Office of the Prime Minister of the Republic of Kazakhstan and his Deputies; the Human Rights Commissioner; heads of departments and other structural subdivisions of the Administration of the President of the Republic of Kazakhstan, the Office of the First President of the Republic of Kazakhstan — Elbasy, and the Security Council Staff, their First Deputies and Deputies; special representatives of the President of the Republic of Kazakhstan; the Director of the Archives of the President of the Republic of Kazakhstan and his Deputies; the Director of the Library of the First President of the Republic of Kazakhstan — Elbasy and the Deputy Directors; the Director of the Republican State Institution «Kogamdyk kelisim»; the Director of the Republican State Institution «Central Communications Service» under the President of the Republic of Kazakhstan; the Heads of the Offices of the Senate and the Mazhilis of the Parliament of the Republic of Kazakhstan and their Deputies; state inspectors of structural subdivisions of the Administration of the President of the Republic of Kazakhstan; akims of cities that are administrative centres of regions, cities of regional significance, districts of regions and districts within cities; and heads of departments of the Office of the President of the Republic of Kazakhstan and their Deputies.

Administrative public positions of category «A» include:

1. Category 1 — Heads of the Offices of the Constitutional Council of the Republic of Kazakhstan, the Office of the President of the Republic of Kazakhstan, the Central Election Commission of the Republic of Kazakhstan, the Accounts Committee for Control over the Execution of the Republican Budget, and the Agency of the Republic of Kazakhstan for Civil Service Affairs; the Head of the Department for Ensuring the Activities of the Courts under the Supreme Court of the Republic of Kazakhstan (the Office of the Supreme Court of the Republic of Kazakhstan); the Secretary of the Supreme Judicial Council of the Republic of Kazakhstan — Head of the Office; heads of the offices of central executive bodies; and the Head of the National Centre for Human Rights.

2. Category 2 — Chairpersons of committees of central executive bodies.

3. Category 3 — Heads of the offices of akims of regions, cities of republican significance and the capital.

In addition to the positions listed above, the category of persons holding responsible public positions includes persons holding other positions established by the Constitution of the Republic of Kazakhstan, constitutional laws and other laws for the direct exercise of the functions of the State and the powers of state bodies.

17. Embezzlement — the unlawful, gratuitous seizure and (or) conversion of another person's property for the benefit of the guilty person or other persons, committed for mercenary purposes, resulting in damage to the owner or other possessor of that property.

The concept of embezzlement applies to the following articles of the chapter on criminal offences against property: Article 187, «Petty Embezzlement»; Article 188, «Theft»; Article 188-1, «Livestock Theft»; Article 189, «Misappropriation or Embezzlement of Property Entrusted to Another Person»; Article 190, «Fraud»; Article 191, «Robbery»; Article 192, «Bandit Robbery»; and Article 193, «Embezzlement of Items of Particular Value».

The mandatory characteristic of the subjective side of embezzlement is a mercenary purpose. In the case of embezzlement, the purpose, unlike the motive, characterises the direct result that the guilty person seeks to achieve by committing the socially dangerous act. The motive of embezzlement answers the question of what guided the person when committing the criminal offence, whereas the purpose of the criminal offence determines the direction of the actions and the criminal result sought by the guilty person.

Subjectively, any embezzlement is committed only with direct intent and for mercenary purposes, that is, the guilty person is aware of the socially dangerous nature of his actions, foresees the possibility or inevitability of socially dangerous consequences and desires their occurrence; understands that, without having a legal right to do so, he is secretly taking another person's property, thereby causing material damage to the owner or other possessor of that property, and does so for the purpose of obtaining unlawful benefit for himself or third parties.

According to paragraph 2 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated 11 July 2003 «On Judicial Practice in Cases of Embezzlement», the subject of embezzlement is another person's property, that is, property that does not belong to the guilty person. At the same time, at the time of the commission of the criminal offence, the property being embezzled may be in the possession of the owner himself, or in the possession of other persons to whom the property has been entrusted or who possess it unlawfully.

Pursuant to paragraph 2 of Article 115 of the Civil Code, property benefits and rights (property) include things, money, including foreign currency, financial instruments, works, services, tangible results of intellectual creative activity, company names, trademarks and other means of individualising products, property rights, digital assets and other property.

According to Article 117 of the Civil Code, property is divided into movable and immovable property.

Immovable property (immovable things, real estate) includes land plots, buildings, structures, perennial plantings and other property that is firmly attached to land, that is, objects whose relocation is impossible without causing damage disproportionate to their purpose.

Apartments and other residential premises, as well as non-residential premises forming part of a condominium, shall be recognised as independent objects (types) of immovable property if they are privately owned (separately owned).

Vessels subject to state registration, including aircraft and sea vessels, inland navigation vessels, «river-sea» vessels, space objects and linear sections of main pipelines shall also be treated as immovable things. Other property may be classified as immovable things by legislative acts.

Property that does not constitute immovable property, including money and securities, shall be recognised as movable property. Registration of rights to movable things is not required, except in cases specified in legislative acts.

Gratuitousness means the absence of counter-compensation for the property or the insignificance of the property provided by the other party. Embezzlement also occurs where only part of the property has been taken gratuitously.

The concept under consideration does not apply to other articles of the Criminal Code in which embezzlement constitutes a method of committing a criminal offence in the form of secretly or openly taking possession of specific items, the possession and disposal of which are governed by a special legal regime and specific regulation under legislation. In particular, these are Articles 284, «Theft or Extortion of Radioactive Substances, Radioactive Waste or Nuclear Materials»; 291, «Theft or Extortion of Weapons, Ammunition, Explosive Substances and Explosive Devices»; and 298, «Theft or Extortion of Narcotic Drugs, Psychotropic Substances or Their Analogues» of the Criminal Code.

18. Illegal paramilitary formation — a formation (association, unit, militia or other group consisting of three or more persons) not provided for by the legislation of the Republic of Kazakhstan, having an organisational structure of a paramilitary nature, individual command, combat capability and strict discipline.

Paragraph 3 of Article 5 of the Constitution of the Republic of Kazakhstan prohibits the establishment of paramilitary formations not provided for by law.

Lawful paramilitary formations include, for example, the Armed Forces of the Republic of Kazakhstan, national security bodies, internal affairs bodies, and others.

The illegality of a formation is manifested in the fact that the establishment of such a formation is not regulated by regulatory legal acts.

The specific characteristics distinguishing an illegal paramilitary formation from an organised group and other forms of organised crime include: a minimum number of participants of three or more persons; the absence of a specific purpose of committing criminal offences; an organisational structure of a paramilitary nature; individual command; combat capability; and strict discipline.

The fact that at least one participant in an illegal paramilitary formation possesses a weapon or an object used as a weapon, that is, the characteristic of being armed, is irrelevant for the classification of an illegal paramilitary formation.

An organisational structure of a paramilitary nature shall be understood as relationships and behaviour within a group that imitate a military organisation. In particular, this includes the existence of a headquarters, units and subdivisions, command and rank-and-file personnel, ranks, uniforms and insignia, subordination based on positions and ranks, statutory rules governing mutual relations, and the taking of an oath. It is irrelevant whether the specified elements of the paramilitary structure imitate an actual existing or former military organisation or an imaginary one.

The principle of individual command is manifested in granting a commander certain rights in relation to subordinates and imposing individual responsibility on that commander for all aspects of the life and activities of the personnel entrusted to him. It is expressed in the commander's right to make decisions independently, issue relevant orders and ensure their implementation, while subordinates are obliged to carry out orders without discussion.

Combat capability is the principal criminalising characteristic of an illegal paramilitary formation, determining the high degree of public danger inherent in the very existence of such organisations. Combat capability means that an illegal paramilitary formation is capable, at any time, of successfully performing actual combat missions and participating in combat operations. Combat capability is characterised by the following factors: the staffing of units with personnel; the training of personnel in the use of weapons and combat skills; and moral and psychological preparedness for combat operations. Although the availability of military weapons, equipment, command and communications facilities is a determining factor of combat capability, it is irrelevant for the classification of an illegal paramilitary formation.

Strict discipline in an illegal paramilitary formation consists in establishing informal rules of conduct similar to military regulations and ensuring their strict and precise observance. Compliance with strict discipline entails the unconditional execution of orders and the existence of disciplinary sanctions for failure to observe them.

19. A person performing management functions in a commercial or other organisation — a person who, on a permanent, temporary or special-authorisation basis, performs organisational and administrative or administrative and economic duties in an organisation that is not a state body, local self-government body, state organisation or quasi-public sector entity.

According to Article 34 of the Civil Code of the Republic of Kazakhstan, an organisation whose principal purpose of activity is to generate income is a commercial organisation. Thus, a commercial or other organisation means any non-state legal entity established in accordance with the legislation of the Republic of Kazakhstan. These do not include local self-government bodies or organisations in which the State holds more than fifty per cent of the authorised capital, including a national management holding, national holding, national company or national development institution in which the State is a shareholder, subsidiaries in which more than fifty per cent of voting shares (participatory interests) belong to them, as well as legal entities in which more than fifty per cent of voting shares (participatory interests) belong to the aforementioned subsidiaries.

A commercial organisation to which the State has transferred property under the right of economic management and which is liable for its obligations with all the property belonging to it shall be understood as a state enterprise under the right of economic management.

In accordance with Article 34 of the Civil Code and Article 2 of the Law of the Republic of Kazakhstan dated 16 January 2001 «On Non-Profit Organisations», other organisations shall be understood as non-profit organisations that do not pursue income generation as their purpose and do not distribute the net income received among their participants.

According to subparagraph 14) of Article 1 of the Law of the Republic of Kazakhstan dated 18 November 2015 «On Combating Corruption», organisational and administrative functions are the right, in accordance with the procedure established by the legislation of the Republic of Kazakhstan, to issue orders and directives that are binding upon persons subordinate in the course of service, as well as to apply incentive measures and disciplinary sanctions to subordinates.

Administrative and economic functions are the right to manage and dispose of property on the organisation's balance sheet, granted in accordance with the procedure established by the legislation of the Republic of Kazakhstan (subparagraph 1) of Article 1 of the aforementioned Law).

A state institution is a non-profit organisation established by the State to perform managerial, socio-cultural or other non-commercial functions and maintained exclusively from the budget or the budget (cost estimate) of the National Bank of the Republic of Kazakhstan, unless additional sources of financing are established by the laws of the Republic of Kazakhstan.

In accordance with the Law of the Republic of Kazakhstan dated 23 January 2001 «On Local Government and Self-Government in the Republic of Kazakhstan», local self-government bodies are bodies entrusted, pursuant to that Law, with the functions of resolving issues of local significance.

Issues of local significance are matters relating to the activities of a region, district, city, urban district, rural district, settlement and village not forming part of a rural district, the regulation of which, in accordance with the aforementioned Law and other legislative acts of the Republic of Kazakhstan, is connected with ensuring the rights and legitimate interests of the majority of residents of the relevant administrative-territorial unit.

A state organisation is an organisation established for the State to exercise its functions.

According to subparagraph 31) of paragraph 1 of Article 3 of the Budget Code of the Republic of Kazakhstan dated 4 December 2008, quasi-public sector entities are state enterprises, limited liability partnerships and joint-stock companies in which the State is a founder, participant or shareholder, including national management holdings, national holdings and national companies, as well as subsidiaries, dependent and other legal entities affiliated with them in accordance with the legislative acts of the Republic of Kazakhstan.

A person performing management functions in a commercial or other organisation is provided for as a special subject in a number of provisions of the Special Part of the Criminal Code of the Republic of Kazakhstan (for example, Articles 152, «Violation of the Labour Legislation of the Republic of Kazakhstan»; 238, «Intentional Bankruptcy»; 239, «Bringing to Insolvency»; 247, «Unlawful Receipt of Remuneration»; 250, «Abuse of Authority»; and others).

The identification of this subject is connected with the need to prevent heads, managers and financially responsible persons of commercial and other organisations from abusing their official powers and using the opportunities associated with their status for criminal purposes.

20. Transport — railway, road, sea, inland water transport, including small sea and river vessels, air transport, urban electric transport, including the underground railway (metro), as well as main pipeline transport located within the territory of the Republic of Kazakhstan.

Definitions of types of transport and vehicles are provided in the following laws of the Republic of Kazakhstan: dated 21 September 1994 «On Transport in the Republic of Kazakhstan»; dated 8 December 2001 «On Railway Transport»; dated 4 July 2003 «On Road Transport»; dated 6 July 2004 «On Inland Water Transport»; dated 15 July 2010 «On the Use of the Airspace of the Republic of Kazakhstan and Aviation Activities»; and dated 22 June 2012 «On Main Pipelines».

According to subparagraph 58) of Article 1 of the Law of the Republic of Kazakhstan «On Railway Transport», railway transport is a type of transport that ensures transportation by railway lines. Railway lines are immovable property objects along which rolling stock moves (main lines, station tracks and access tracks). Accordingly, railway transport includes locomotives, railcars, wagons, gondola cars, platforms, tank cars, cranes and other rolling stock.

Rail-based electric transport (trams and funiculars) does not belong to railway vehicles.

According to subparagraph 4) of Article 1 of the Law of the Republic of Kazakhstan «On Road Transport», road transport is a sector of the economy whose field of activity is the organisation and performance of transportation of passengers, baggage, cargo and postal items using road transport vehicles and infrastructure.

According to Article 19-12 of the aforementioned Law, road transport includes buses, minibuses, passenger cars, trucks, trolleybuses, automobile trailers, semi-trailers for tractor units, specialised vehicles (designed for the transportation of certain types of cargo), special-purpose vehicles (primarily designed to perform various types of work not related to transportation), the design of road transport vehicles, the manufacture (repair) of road transport vehicles, the transportation and storage of road transport vehicles, and the recycling and disposal of road transport vehicles.

Maritime transport is a type of water transport. Maritime transport includes any vessel capable of moving on the surface of water (seas, oceans and adjacent waters), as well as vessels that are afloat and perform certain functions related to the transportation, transshipment, storage and processing of various cargoes, the transportation of passengers and the provision of services to them.

According to Article 1 of the Law of the Republic of Kazakhstan dated 13 December 2005 «On Ratification of the Framework Convention for the Protection of the Marine Environment of the Caspian Sea», a vessel means any type of vessel used in the marine environment, including hydrofoil vessels, hovercraft, submarines, towed and self-propelled floating craft, as well as platforms and other artificially constructed structures at sea.

According to subparagraph 24) of Article 1 of the Law of the Republic of Kazakhstan «On Inland Water Transport», inland water transport of the Republic of Kazakhstan is a type of transport registered within the territory of the Republic of Kazakhstan in accordance with the legislation of the Republic of Kazakhstan and carrying out navigation on inland waterways and other activities related to navigation.

According to subparagraph 45) of Article 1 of the Law of the Republic of Kazakhstan «On Inland Water Transport», a small vessel is a vessel whose length does not exceed twenty metres and the permitted number of persons on board does not exceed twelve. This does not include vessels constructed or equipped for fishing, cargo transportation, towing, prospecting, exploration and extraction of minerals, construction, road, hydraulic engineering and other similar works, pilotage and icebreaker escort, as well as activities aimed at protecting water bodies against pollution and littering.

River transport (inland water transport) is a type of transport that carries out the transportation of cargo and passengers by vessels along natural (rivers and lakes) and artificial (canals and reservoirs) inland waterways.

The leader of a public association is a special subject of the qualified elements of criminal offences provided for in Part 2 of Article 145 of the Criminal Code, «Violation of the Equality of Rights of Individuals and Citizens»; Part 2 of Article 174, «Incitement of Social, National, Tribal, Racial, Class or Religious Discord»; Part 2 of Article 179, «Propaganda or Public Calls for the Seizure or Retention of Power, or the Violent Change of the Constitutional Order of the Republic of Kazakhstan»; Part 2 of Article 180, «Separatist Activities»; Part 3 of Article 182, «Establishment, Leadership of or Participation in an Extremist Group»; Part 2 of Article 256, «Propaganda of Terrorism or Public Calls for the Commission of an Act of Terrorism»; Part 3 of Article 257, «Establishment, Leadership of and Participation in a Terrorist Group»; Part 2 of Article 258, «Financing of Terrorist or Extremist Activities and Other Assistance to Terrorism or Extremism»; Part 3 of Article 266, «Financing the Activities of a Criminal Group, as well as Storing and Distributing Property and Developing Financing Channels»; and Part 2 of Article 403, «Unlawful Interference by Members of Public Associations in the Activities of State Bodies».

22. Coordination of criminal activities — an agreement between organised groups (criminal organisations) to jointly commit crimes (establishing permanent contacts between the leaders or other participants of organised groups (criminal organisations), developing plans and conditions for the commission of crimes, as well as dividing spheres of criminal influence and proceeds from criminal activities).

Coordination of criminal activities is one of the methods of coordinating the criminal activities of organised groups and criminal organisations and is equated with the establishment of a criminal community.

Coordination of criminal activities is always carried out for the purpose of committing one or more crimes and may be of a one-time, episodic or permanent nature.

Organised groups include gangs, criminal groups, criminal organisations, terrorist groups, transnational organised groups and extremist groups.

At the same time, organised groups may jointly commit one or more crimes.

Coordination of criminal activities is carried out through participation in meetings of the leaders or other participants of organised groups and criminal organisations, including by using means of communication.

23. Criminal community — an association of two or more criminal organisations that have conspired to jointly commit one or more criminal offences, as well as the creation of conditions for any of these criminal organisations to independently commit one or more criminal offences.

Forms of complicity such as a criminal organisation and a criminal community are, in practice, different in nature; accordingly, the legislator has assigned them different meanings in the Criminal Code.

In the field of combating organised crime, the following trend can be observed: organised groups that have existed for a long time increase their membership and spheres of influence and, becoming structured in the manner of legal entities or military organisations, effectively transform into another form of organised crime — a criminal organisation.

This is manifested in the introduction of an organisational structure based on the proportional-territorial principle while preserving individual command.

Individual structural subdivisions may carry out separate criminal activities while remaining subordinate to the head of the criminal organisation.

Criminal organisations frequently register legal entities for the purpose of concealment and have an extensive network of branches.

A criminal community emerges as a similar form of an «association». In such a community, a meeting of the leaders of the united criminal organisations or one person enjoying authority in the criminal underworld coordinates the activities of those criminal organisations and regulates the interests and areas of criminal enterprise between them.

An organised group and a criminal organisation differ from a criminal community in their relative independence and isolation. There is no principle of individual command in a criminal community, which distinguishes it from a criminal organisation. Coordination of actions is carried out on a voluntary basis.

An association of criminal organisations arises when an agreement (conspiracy) is reached between the leaders of those groups; under that agreement, the resolution of certain important issues may be submitted for collective consideration by the leaders or entrusted to one person whose authority they recognise.

At the same time, the question arises as to the possibility of uniting into a criminal community for the purpose of committing criminal offences. In this regard, only the commission of crimes should be discussed. This issue requires clarification.

24. Criminal group — 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 term under consideration has a generalising meaning and encompasses any type of stable group; accordingly, their exhaustive list is provided in the definition.

According to the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated 21 June 2001 «On Certain Issues of the Application by Courts of Legislation on Liability for Banditry and Other Criminal Offences Committed in Complicity», if a criminal offence has been committed by an organised group, criminal organisation, criminal community, transnational criminal organisation, transnational criminal community, terrorist group, extremist group, gang or illegal paramilitary formation, it may be classified as having been committed by a criminal group (paragraph 7 of paragraph 3 of the Regulatory Resolution of the Supreme Court).

Pursuant to Part 3 of Article 31 of the Criminal Code, a criminal group shall be understood to include not only an organised group, criminal organisation, criminal community, transnational criminal organisation and transnational criminal community, the establishment of which is punishable under the first parts of Articles 262, 263, 264 and 265 of the Criminal Code, but also a terrorist group, extremist group, stable armed group (gang) and illegal paramilitary formation, the establishment of which is punishable under the first parts of Articles 257, 268 and 267 of the Criminal Code (paragraph 6 of the Regulatory Resolution of the Supreme Court).

The stability of a criminal group may be confirmed, in particular, by such characteristics as the stability of its membership, close relationships between its members, the coordination of their actions, the stability of the forms and methods of criminal activity, and the duration of its existence.

The establishment of a criminal group shall be understood as any active, purposeful actions resulting in the actual formation of the aforementioned organised group or community. Such actions may consist of recruiting participants, searching for weapons, ammunition, communications equipment, documents, vehicles and other material resources, developing a structure and criminal plans, and recruiting individuals.

The establishment of a criminal group means that the corpus delicti is complete, regardless of whether any crimes have been planned or committed. The process of forming the specified criminal structures itself should be regarded as preparation for their establishment.

If it is established that the intention was to create these formations for the purpose of committing a specific serious or especially serious crime (for example, murder), the actions of the persons concerned must also be classified as preparation for the commission of that crime.

Leadership of a criminal group shall be understood as making decisions related to planning, material support and organisation of the gang's criminal activities, as well as decisions concerning the preparation for and commission of specific criminal offences by it.

A criminal group may be led by one person or by several persons.

A criminal group may also exist without a leader. This includes cases where participants in a small organised criminal group do not single out a leader from among themselves, jointly resolve matters relating to criminal activities and, as a rule, act as co-perpetrators of the criminal offences they commit.

Participation in a criminal group may be manifested in joining that criminal formation, performing actions aimed at financing it, providing it with weapons and vehicles, searching for targets, supplying information, and so forth, as well as directly committing the planned criminal offences.

25. Criminal organisation — an organised group whose participants are divided into organisationally, functionally and (or) territorially separate groups (structural subdivisions).

A criminal organisation is an organised group and includes a gang, criminal group, criminal organisation, terrorist group, transnational organised group and extremist group.

A criminal organisation is a more dangerous type of organised group due to the characteristic of being structured, that is, the division of its members into organisationally, functionally and (or) territorially separate groups (structural subdivisions).

A criminal organisation has a hierarchical structure in which roles are distributed on a permanent basis over time when specific crimes are committed. Participants are selected according to their personal characteristics to perform these roles, and they may also be replaced by other persons or removed from the roles they perform.

26. Official — a person who, in state bodies and local self-government bodies, as well as in the Armed Forces of the Republic of Kazakhstan, other troops and military formations, permanently, temporarily or under special authority performs the functions of a representative of authority or performs organisational and administrative or administrative and economic functions.

According to subparagraph 2) of Article 1 of the Law of the Republic of Kazakhstan «On Combating Corruption», an official is a person who, in state bodies and local self-government bodies, as well as in the Armed Forces of the Republic of Kazakhstan, other troops and military formations, permanently, temporarily or under special authority performs the functions of a representative of authority or performs organisational and administrative or administrative and economic functions.

Subparagraph 8) of Article 1 of the Law of the Republic of Kazakhstan «On Public Service» defines an official as a person who, in state bodies, permanently, temporarily or under special authority performs the functions of a representative of authority or performs organisational and administrative or administrative and economic functions.

Thus, an official means:

— a person who permanently, temporarily or under special authority performs the functions of a representative of authority, that is, a person vested with administrative powers in relation to persons who are not subordinate to him in the course of service. According to subparagraph 9) of Article 3 of the Criminal Code, a representative of authority is a person in public service who, in accordance with the procedure established by the legislation of the Republic of Kazakhstan, is vested with administrative powers in relation to persons who are not subordinate to him in the course of service, including an employee of a law enforcement or special state body, an employee of the military police, or a military serviceman participating in ensuring public order;

— a person who permanently, temporarily or under special authority performs organisational and administrative functions. According to subparagraph 14) of Article 1 of the Law of the Republic of Kazakhstan «On Combating Corruption», organisational and administrative functions are the right, in accordance with the procedure established by the legislation of the Republic of Kazakhstan, to issue orders and directives that are binding upon persons subordinate in the course of service, as well as to apply incentive measures and disciplinary sanctions to subordinates;

— a person who permanently, temporarily or under special authority performs organisational and administrative or administrative and economic functions. Administrative and economic functions are the right to manage and dispose of property on the organisation's balance sheet, granted in accordance with the procedure established by the legislation of the Republic of Kazakhstan (subparagraph 1) of Article 1 of the aforementioned Law).

The concept of «official» as a criminal-law term covers only persons holding positions in state bodies, local self-government bodies, as well as in the Armed Forces of the Republic of Kazakhstan, other troops and military formations.

According to subparagraph 22) of Article 1 of the Law of the Republic of Kazakhstan «On Defence and the Armed Forces of the Republic of Kazakhstan», the Armed Forces of the Republic of Kazakhstan are the basis of the State's military organisation, established and maintained by the Republic of Kazakhstan to ensure defence, repel aggression or prevent a direct external threat, as well as to fulfil obligations arising from the international commitments of the Republic of Kazakhstan.

Other troops and military formations include the Border Service of the National Security Committee of the Republic of Kazakhstan, military counterintelligence and military police bodies of the National Security Committee of the Republic of Kazakhstan, the Special Purpose Forces of the State Security Service of the Republic of Kazakhstan, the National Guard of the Republic of Kazakhstan, military investigative bodies of the Ministry of Internal Affairs of the Republic of Kazakhstan, civil defence management bodies and military units of the authorised body in the field of civil protection, and military prosecutor's offices (subparagraph 15) of Article 1 of the aforementioned Law).

In criminal offences committed by officials, the special subject is closely connected with a characteristic of the objective side, namely, the use of official powers granted by virtue of the person's official position when committing the act. Where the subject of a criminal offence is an official, the characteristics of the objective side must necessarily indicate that the person used his or her own official position, and only that position. It is precisely the use of the official position that grants the right to perform the functions of a representative of authority or to exercise organisational and administrative or administrative and economic functions that constitutes a circumstance increasing the public danger of the criminal offence compared with an offence committed by a general subject.

26-1) Compulsory payment — the obligation of a person who has committed a criminal offence to pay a fixed monetary amount recovered pursuant to a court conviction in accordance with the legislation of the Republic of Kazakhstan on the Victims' Compensation Fund.

The concept under consideration was introduced in connection with the inclusion in the Criminal Code of the Republic of Kazakhstan of a new institution entitled «Other Measures of Criminal-Law Influence» (Section 7 of the General Part of the Criminal Code). In addition, the Criminal Code was supplemented with Articles 98-1, «Compulsory Payment», and 98-2, «Amount of Compulsory Payment».

In accordance with Articles 98-1 and 98-2 of the Criminal Code, a compulsory payment in the form of an obligation to transfer a fixed monetary amount to the Victims' Compensation Fund shall be imposed on a person who has committed a criminal offence and has been found guilty in accordance with the procedure established by law:

— for criminal misdemeanours — 5 monthly calculation indices;

— for minor crimes — 10 monthly calculation indices;

— for crimes of medium severity — 15 monthly calculation indices;

— for serious crimes — 20 monthly calculation indices;

— for especially serious crimes — 30 monthly calculation indices.

The compulsory payment shall be imposed by the court on the basis of a conviction. At the same time, the imposition of a compulsory payment is mandatory and does not depend on the imposition of a punishment on the guilty person or the application of other criminal-law measures. The procedure and conditions for recovering a compulsory payment are determined by the Law of the Republic of Kazakhstan dated 10 January 2018 «On the Victims' Compensation Fund».

For example, according to Article 6 of the aforementioned Law, compensation shall be paid to:

«1) minors who are victims of crimes involving sexual violence, and persons recognised as victims of crimes involving human trafficking and torture:

in criminal cases involving offences under Articles 110 (subparagraph 4) of Part 2), 120 (Part 3-1, subparagraph 1) of Part 3-2 and Part 4), 121 (Part 3-1, subparagraph 1) of Part 3-2 and Part 4), 123 (Part 2), 124, 128 (Parts 1, 2 and 3 and subparagraph 1) of Part 4), 134, 135 (Parts 1, 2 and 3 and subparagraph 1) of Part 4) and 146 (Parts 1 and 2) of the Criminal Code of the Republic of Kazakhstan;

persons who have sustained serious harm to health or have been infected with the human immunodeficiency virus (HIV):

in criminal cases involving offences under Articles 106 (Parts 1, 2 and 3) (insofar as the offence was committed by a criminal group), 114 (Parts 3 and 4), 116 (Part 3) (insofar as serious harm to health was caused), 118 (Parts 2 and 3), 119 (Part 2) (insofar as serious harm to health was caused), 120 (subparagraph 2) of Part 3) (insofar as serious harm was caused to the health of the female victim or she was infected with HIV), 121 (subparagraph 2) of Part 3) (insofar as serious harm was caused to the health of the victim (female victim) or he (she) was infected with HIV), 125 (subparagraph 3) of Part 3) (insofar as serious harm to health was caused), 126 (subparagraph 3) of Part 3) (insofar as serious harm to health was caused), 127 (subparagraph 4) of Part 2) (insofar as serious harm to health was caused), 128 (subparagraph 2) of Part 4) (insofar as serious harm to health was caused), 135 (subparagraph 2) of Part 4) (insofar as serious harm to health was caused), 141 (Part 1) (insofar as serious harm to health was caused), 146 (Part 3) (insofar as serious harm to health was caused), 192 (subparagraph 5) of Part 2), 202 (subparagraph 2) of Part 2) (insofar as serious harm to health was caused), 203 (subparagraph 2) of Part 2) (insofar as serious harm to health was caused), 255 (subparagraph 2) of Part 3) (insofar as serious harm to health was caused), 261 (Part 3) (insofar as serious harm to health was caused), 269 (Part 3) (insofar as serious harm to health was caused), 270 (Part 3) (insofar as serious harm to health was caused), 277 (Parts 1 and 2) (insofar as serious harm to health was caused), 317 (Parts 2 and 5), 319 (Part 5) (insofar as serious harm to health was caused), 320 (Part 2) (insofar as serious harm to health was caused), 322 (Part 2) (insofar as serious harm to health was caused), 344 (Part 1) (insofar as serious harm to health was caused), 345 (Part 2), 345-1 (Part 2), 346 (Part 4), 350 (Part 1) (insofar as serious harm to health was caused), 351 (Part 1), 352 (insofar as serious harm to health was caused), 355 (subparagraph 1) of Part 2), 356 (subparagraph 1) of Part 2) (insofar as serious harm to health was caused), 358 (Part 3) and 359 (Part 2) of the Criminal Code of the Republic of Kazakhstan;

2) in the event of the death of a victim, persons who acquire the rights of the victim:

in criminal cases involving offences under Articles 99, 104, 105 (insofar as the offence involves driving a person to suicide), 106 (Part 3 (insofar as the offence resulted in the unintentional death of the victim)), 116 (Part 3) (insofar as the offence resulted in the unintentional death of the victim or the death of two or more persons), 119 (Parts 3 and 4), 120 (subparagraph 2) of Part 3-2, Part 4 (insofar as the offence resulted in the unintentional death of the victim)), 121 (subparagraph 2) of Part 3-2, Part 4 (insofar as the offence resulted in the unintentional death of the victim (female victim)), 125 (subparagraph 3) of Part 3) (insofar as the offence resulted in the unintentional death of the victim or the death of two or more persons), 126 (subparagraph 3) of Part 3) (insofar as the offence resulted in the unintentional death of the victim or the death of two or more persons), 127 (subparagraph 4) of Part 2) (insofar as the offence resulted in the unintentional death of the victim or the death of two or more persons), 128 (subparagraph 2) of Part 4) (insofar as the offence resulted in the unintentional death of the victim or the death of two or more persons), 135 (subparagraph 2) of Part 4) (insofar as the offence resulted in the unintentional death of the victim or the death of two or more persons), 141 (Part 2), 146 (Part 3) (insofar as the offence resulted in the unintentional death of the victim), 192 (subparagraph 1) of Part 3), 202 (subparagraph 1) of Part 3), 203 (Part 3), 255 (subparagraph 2) of Part 3) (insofar as the offence resulted in the unintentional death of a person or the death of two or more persons), 261 (Part 3) (insofar as the offence resulted in the unintentional death of a person or the death of two or more persons), 269 (Part 3) (insofar as the offence resulted in the unintentional death of a person or the death of two or more persons), 270 (Part 3) (insofar as the offence resulted in the unintentional death of a person or the death of two or more persons), 277 (Parts 2 and 3) (insofar as the offence resulted in the unintentional death of a person or the death of two or more persons), 318 (Parts 3 and 4), 319 (Part 5) (insofar as the offence resulted in the unintentional death of the victim), 320 (Part 2) (insofar as the offence resulted in the unintentional death of the patient), 322 (Parts 3 and 4), 344 (Parts 2 and 3), 345 (Parts 3 and 4), 345-1 (Parts 3 and 4), 346 (Parts 5 and 6), 348 (Parts 3 and 4), 349 (Parts 2 and 4), 350 (Parts 2 and 3), 351 (Parts 2 and 3), 352 (insofar as the offence resulted in the death of a person or two or more persons), 353 (Parts 3 and 4), 354 (Parts 3 and 4), 355 (subparagraph 4) of Part 3), 356 (subparagraph 4) of Part 2), 358 (Parts 4 and 5) and 359 (Parts 3 and 4) of the Criminal Code of the Republic of Kazakhstan».

The amount of compensation for minors who are victims of crimes involving sexual violence, and persons recognised as victims of crimes involving human trafficking and torture, shall be thirty monthly calculation indices.

The amount of compensation for persons who have sustained serious harm to health or have been infected with the human immunodeficiency virus (HIV) shall be forty monthly calculation indices.

In the event of the death of a victim, the amount of compensation payable to persons who acquire the rights of the victim shall be fifty monthly calculation indices.

If one person is recognised as a victim in relation to a combination of the criminal offences specified above, compensation shall be awarded by absorbing the smaller amount of compensation into the larger amount of compensation established for one of the criminal offences (Article 7 of the aforementioned Law).

After a person has been recognised as a victim, that person shall have the right to apply to the state body performing the functions of criminal prosecution with an application for the award of compensation.

The period for consideration by a state body performing the functions of criminal prosecution of an application submitted by a victim or a person who has acquired the rights of a victim shall be ten calendar days from the date of its registration.

The limitation period for submitting an application shall be three years from the date on which the person is recognised as a victim.

If the time limit for submitting an application has been missed, the victim or the person who has acquired the rights of the victim shall have the right to apply to the court for restoration of the missed time limit in accordance with the procedure established by the legislation of the Republic of Kazakhstan. 

Ниже приведён полный перевод на английский язык с сохранением структуры, нумерации, заголовков, примечаний, перечней и юридической терминологии исходного текста. Содержание и последовательность положений не сокращены.

At the request of the victim or a person vested with the rights of the victim, the state body performing the functions of criminal prosecution shall:

1. review the said application;
2. inform the victim or the person vested with the rights of the victim in writing of the results of the review of the application, explaining the right to appeal the decision adopted.

The decision to grant compensation or to refuse compensation shall be made by the authorized head of the state body performing the functions of criminal prosecution.

Note: Spelling errors, typographical errors and obvious text recognition errors have been corrected. The numbering of articles and the wording of the provisions of the law require verification against the official text, as the source contains fragments that cannot be unambiguously reconstructed from the context alone. The corrected text is not a verified official version of the law.

Compensation shall be granted on the basis of the following documents: 1) an application from the victim or the person vested with the rights of the victim; 2) a copy of the identity document of the victim, or documents confirming the identity of the person vested with the rights of the victim and their right to receive compensation; 3) details of the bank account number of the victim or the person vested with the rights of the victim, opened with banks and (or) organizations carrying out certain types of banking operations; 4) a copy of the resolution of the body conducting the criminal proceedings recognizing the person as a victim; 5) a copy of the document confirming the nature and degree of severity of the harm caused to the victim's health; 6) in the event of the victim's death, a copy of the death certificate or another document confirming the victim's death.

One compensation payment shall be granted to all family members of the deceased. A separate compensation payment shall be granted for each deceased person who is a member of the same family.

The victim or the person vested with the rights of the victim shall be liable for the accuracy of the submitted documents in accordance with the laws of the Republic of Kazakhstan.

The grounds for refusing to grant compensation shall be: 1) absence of grounds provided for by the said Law; 2) failure to submit the application within the prescribed period; 3) submission of false documents; 4) full compensation by the guilty person for the harm caused to the victim; 5) a resolution of the body conducting the criminal proceedings terminating the person's participation as a victim.

A decision refusing to grant compensation may be appealed by the victim or the person vested with the rights of the victim in accordance with the procedure established by the legislation of the Republic of Kazakhstan (Article 8 of the above-mentioned Law).

Compensation shall be paid by the central authorized budget execution body no later than ten calendar days following the date on which the state body performing the functions of criminal prosecution submits the centralized register of compensation recipients, by transferring the funds to the bank accounts of the compensation recipients (Article 9 of the above-mentioned Law).

27) A person authorized to perform state functions — a civil servant in accordance with the legislation of the Republic of Kazakhstan on civil service, or a maslikhat deputy.

A person authorized to perform state functions is a special subject of corruption-related crimes and certain official criminal offenses.

In accordance with subparagraph 3) of Article 1 of the Law of the Republic of Kazakhstan “On Combating Corruption,” a person authorized to perform state functions is a civil servant in accordance with the laws of the Republic of Kazakhstan on civil service, a maslikhat deputy, as well as a person temporarily performing the duties stipulated for a state position until their appointment to civil service.

According to subparagraph 12) of Article 1 of the Law of the Republic of Kazakhstan “On Civil Service of the Republic of Kazakhstan,” a civil servant is a citizen of the Republic of Kazakhstan who, in accordance with the procedure established by the legislation of the Republic of Kazakhstan, holds a state position in a state body remunerated from the republican or local budgets or from the funds of the National Bank of the Republic of Kazakhstan and exercises official powers for the purpose of implementing the tasks and functions of the state.

Corps “A” — administrative civil service positions at the management level for which a special procedure for entering, serving in and terminating civil service in the Republic of Kazakhstan is established, as well as special qualification requirements (subparagraph 1) of Article 1 of the above-mentioned Law).

Corps “B” — administrative civil service positions not included in Corps “A” (subparagraph 3) of Article 1 of the above-mentioned Law).

According to Article 7 of the Law of the Republic of Kazakhstan “On Civil Service of the Republic of Kazakhstan,” state positions of civil servants shall be established in accordance with the Constitution, laws of the Republic of Kazakhstan, acts of the President of the Republic of Kazakhstan and other regulatory legal acts of the Republic of Kazakhstan.

Categories of state positions shall be established for administrative civil servants. Categories of state positions shall not be established for political civil servants.

The Register of Positions of Political and Administrative Civil Servants shall be approved by the President of the Republic of Kazakhstan upon submission by the authorized body.

The category of an administrative state position is a set of administrative state positions with corresponding qualification requirements (subparagraph 11) of Article 1 of the above-mentioned Law).

An administrative civil servant is a civil servant who performs their activities on a permanent professional basis, except for cases provided for by the laws of the Republic of Kazakhstan and acts of the President of the Republic of Kazakhstan (subparagraph 10) of Article 1 of the above-mentioned Law).

The status of a civil servant includes the general rights, freedoms and duties of a civil servant as a citizen of the Republic of Kazakhstan, subject to restrictions established by the laws of the Republic of Kazakhstan in connection with being in civil service, as well as rights, duties and liability arising from the specific nature of civil service.

Citizens of the Republic of Kazakhstan acquire the status of a civil servant from the moment of appointment or election to a state position and lose this status from the moment of termination of civil service in accordance with the procedure established by the legislation of the Republic of Kazakhstan in the field of civil service (Article 8 of the above-mentioned Law).

The powers of an administrative civil servant commence upon admission to service and terminate upon dismissal. An administrative civil servant who has committed a disciplinary offense may be temporarily suspended from performing official duties by the head who appointed them until the matter of liability is resolved in accordance with the established procedure.

According to Article 49 of the Constitution of the Republic of Kazakhstan, the powers of Parliament commence from the moment the first session of Parliament is opened and end upon the commencement of the first session of Parliament of the new convocation. The powers of Parliament may be terminated early in the cases and in the manner provided for by the Constitution. The organization and activities of Parliament, as well as the legal status of its deputies, are determined by the Constitutional Law of the Republic of Kazakhstan “On the Parliament of the Republic of Kazakhstan and the Status of Its Deputies.”

The legal status of maslikhat deputies is regulated by the Law of the Republic of Kazakhstan “On Local Government and Self-Government in the Republic of Kazakhstan.”

According to subparagraph 11) of Article 1 of the above-mentioned Law, a local representative body (maslikhat) is an elected body elected by the population of a region, a city of republican significance and the capital, or a district (a city of regional significance), which expresses the will of the population and, in accordance with the legislation of the Republic of Kazakhstan, determines the measures necessary for its implementation and monitors their execution.

The powers of a maslikhat deputy commence from the moment of their registration as a maslikhat deputy by the relevant territorial election commission and terminate upon termination of the powers of the maslikhat.

The powers of a maslikhat deputy shall be terminated early in the following cases: election or appointment of the deputy to a position which, in accordance with the legislation of the Republic of Kazakhstan, is incompatible with the performance of deputy duties; entry into legal force of a court decision declaring the deputy legally incapable or partially legally incapable; termination of the powers of the maslikhat; withdrawal from or expulsion from the political party from which the deputy was elected in accordance with the Constitutional Law of the Republic of Kazakhstan “On Elections in the Republic of Kazakhstan”; termination of the activities of the political party from which the deputy was elected in accordance with the Constitutional Law of the Republic of Kazakhstan “On Elections in the Republic of Kazakhstan”; death of the deputy, entry into legal force of a court decision declaring the deputy missing or a court decision declaring the deputy deceased; termination of citizenship of the Republic of Kazakhstan; entry into legal force of a court conviction against the deputy for committing a crime or an intentional criminal misdemeanor; permanent relocation outside the relevant administrative-territorial unit; submission of the deputy's personal resignation statement; systematic failure by the deputy to perform their duties, including absence without valid reasons from plenary sessions of the maslikhat or meetings of the maslikhat bodies of which the deputy is a member, more than three times in a row; appointment to the position of chairperson of the audit commission or member of the audit commission of a region, a city of republican significance or the capital (Article 20 of the above-mentioned Law).

28. A person equated to persons authorized to perform state functions — a person elected to local self-government bodies; a citizen registered in accordance with the procedure established by the legislation of the Republic of Kazakhstan as a candidate for President of the Republic of Kazakhstan, a deputy of the Parliament of the Republic of Kazakhstan or maslikhats, an akim of a city of district significance, settlement, village or rural district, as well as a candidate for membership in an elected local self-government body; an employee permanently or temporarily working in a local self-government body whose remuneration is paid from the state budget of the Republic of Kazakhstan; a person performing management functions in a state organization or a quasi-public sector entity, as well as a person authorized to make decisions on the organization and conduct of procurement, including public procurement, or responsible for the selection and implementation of projects financed from the state budget and the National Fund of the Republic of Kazakhstan, holding a position no lower than that of the head of an independent structural subdivision in the said organizations; employees of the National Bank of the Republic of Kazakhstan and its departments; employees of the authorized organization in the field of civil aviation operating in accordance with the legislation of the Republic of Kazakhstan on the use of the airspace of the Republic of Kazakhstan and aviation activities; employees of the authorized body for regulation, control and supervision of the financial market and financial organizations.

In accordance with subparagraph 4) of Article 1 of the Law of the Republic of Kazakhstan “On Combating Corruption,” a person equated to persons authorized to perform state functions is a person elected to local self-government bodies; a citizen registered in accordance with the procedure established by the legislation of the Republic of Kazakhstan as a candidate for President of the Republic of Kazakhstan, a deputy of the Parliament of the Republic of Kazakhstan or maslikhats, an akim of a city of district significance, settlement, village or rural district, as well as a candidate for membership in an elected local self-government body; an employee permanently or temporarily working in a local self-government body whose remuneration is paid from the state budget of the Republic of Kazakhstan; a person performing management functions in a state organization or a quasi-public sector entity; a person authorized to make decisions on the organization and conduct of procurement, including public procurement, or responsible for the selection and implementation of projects financed from the state budget and the National Fund of the Republic of Kazakhstan, holding a position no lower than that of the head of an independent structural subdivision in the said organizations; employees of the National Bank of the Republic of Kazakhstan and its departments; employees of the authorized organization in the field of civil aviation operating in accordance with the legislation of the Republic of Kazakhstan on the use of the airspace of the Republic of Kazakhstan and aviation activities; employees of the authorized body for regulation, control and supervision of the financial market and financial organizations.

A person equated to persons authorized to perform state functions is a special subject of corruption-related crimes and certain official criminal offenses.

Thus, the following persons are recognized as persons equated to persons authorized to perform state functions:

• a person elected to local self-government bodies;
• a citizen registered in accordance with the procedure established by the legislation of the Republic of Kazakhstan as a candidate for President of the Republic of Kazakhstan, a deputy of the Parliament of the Republic of Kazakhstan or maslikhats, an akim of a city of district significance, settlement, village or rural district, as well as a candidate for membership in an elected local self-government body;
• an employee permanently or temporarily working in a local self-government body whose remuneration is paid from the state budget of the Republic of Kazakhstan;
• a person performing management functions in a state organization or a quasi-public sector entity;
• a person authorized to make decisions on the organization and conduct of procurement, including public procurement, or responsible for the selection and implementation of projects financed from the state budget and the National Fund of the Republic of Kazakhstan, holding a position no lower than that of the head of an independent structural subdivision in the said organizations;
• employees of the National Bank of the Republic of Kazakhstan and its departments;
• employees of the authorized organization in the field of civil aviation operating in accordance with the legislation of the Republic of Kazakhstan on the use of the airspace of the Republic of Kazakhstan and aviation activities;
• employees of the authorized body for regulation, control and supervision of the financial market and financial organizations.

Public relations associated with local self-government are regulated by the Law of the Republic of Kazakhstan dated January 23, 2001, “On Local Government and Self-Government in the Republic of Kazakhstan.”

Local self-government is an activity carried out directly by the population, as well as through maslikhats and other local self-government bodies, aimed at independently resolving matters of local significance under their own responsibility, in accordance with the procedure determined by the above-mentioned Law and other regulatory legal acts (subparagraph 9) of Article 1 of the Law).

Persons elected to local self-government bodies are registered by territorial election commissions on the basis of the protocols of precinct election commissions.

The procedure for registering citizens as candidates for President of the Republic of Kazakhstan, deputies of the Parliament of the Republic of Kazakhstan or maslikhats, as well as members of an elected local self-government body, is determined in accordance with the Constitutional Law of the Republic of Kazakhstan dated September 28, 1995, “On Elections in the Republic of Kazakhstan.”

A person shall be deemed to have been registered as a candidate from the moment of their registration in that capacity by the relevant election commission until the moment the election commission adopts a resolution establishing the election results or until the cancellation of the registration decision in connection with the withdrawal of their candidacy or the cancellation of the decision to nominate the candidate.

In accordance with paragraph 3 of Article 47 of the above-mentioned Constitutional Law, candidates for President and deputies of Parliament, from the date of their registration until the publication of the election results, as well as until their registration as President or a deputy of Parliament, may not, without the consent of the Central Election Commission, be detained, taken into custody, placed under house arrest, forcibly brought before a competent authority, subjected to administrative penalties imposed by a court, or prosecuted, except in cases of detention at the scene of a crime or commission of a grave or especially grave crime.

In accordance with subparagraph 1) of paragraph 1 of Article 35 of the Law of the Republic of Kazakhstan “On Local Government and Self-Government in the Republic of Kazakhstan,” an akim of a city of district significance, settlement, village or rural district, in accordance with the legislation of the Republic of Kazakhstan, is an official of the relevant district (city) akimat within the territory of the respective administrative-territorial unit and, without a power of attorney, represents it in relations with state bodies, organizations and citizens.

According to subparagraph 2-1) of Article 1 of the Law of the Republic of Kazakhstan “On Combating Corruption,” a person performing management functions in a state organization or a quasi-public sector entity is a person who, permanently, temporarily or by special authority, performs organizational and administrative or administrative and economic functions in the said organizations.

According to subparagraph 31) of paragraph 1 of Article 3 of the Budget Code of the Republic of Kazakhstan dated December 4, 2008, quasi-public sector entities are state enterprises, limited liability partnerships, joint-stock companies, including national management holdings, national holdings and national companies, in which the state is the founder, participant or shareholder, as well as their subsidiaries, dependent and other legal entities affiliated with them in accordance with the legislative acts of the Republic of Kazakhstan.

In accordance with subparagraph 18) of Article 2 of the Law of the Republic of Kazakhstan dated December 4, 2015, “On Public Procurement,” the procedure for organizing and conducting public procurement is a set of interrelated, sequential measures carried out by the public procurement organizer and the relevant commission in accordance with the said Law for the purpose of concluding a public procurement contract with a potential supplier.

According to Article 7 of the above-mentioned Law, in order to carry out procedures for organizing and conducting public procurement, the customer shall designate a public procurement organizer, as well as an official of the customer representing the interests of the latter in the forthcoming public procurement, except in cases where the customer and the public procurement organizer are the same entity.

The public procurement organizer may be the customer itself, acting directly or through its structural subdivision responsible for carrying out procedures for organizing and conducting public procurement.

The customer shall have the right to: designate a subordinate state institution of the customer as the public procurement organizer; act as the public procurement organizer for several state institutions subordinate to the customer; designate one of several state institutions subordinate to the customer as the public procurement organizer for those institutions.

The budget program administrator shall have the right to act as the public procurement organizer for a state institution subordinate to it, a legal entity in respect of which it acts as the state management body, or a person affiliated with a legal entity in respect of which the budget program administrator acts as the state management body.

A state enterprise shall have the right to act as the public procurement organizer for persons affiliated with it.

A legal entity in which fifty or more percent of the voting shares (participatory interests in the authorized capital) are owned by the state shall have the right to act as the public procurement organizer for persons affiliated with it.

The public procurement organizer shall be obliged to designate an official representing it in relations with the customer, potential suppliers, the relevant commissions and the expert, except in cases where the customer and the public procurement organizer are the same entity. The representative of the public procurement organizer shall be designated from among the employees of the structural subdivision responsible for carrying out procedures for organizing and conducting public procurement.

According to subparagraph 27) of Article 2 of the above-mentioned Law, customers are state bodies, state institutions, as well as state enterprises, legal entities in which fifty or more percent of the voting shares (participatory interests in the authorized capital) are owned by the state, and legal entities affiliated with them, with the exception of: national management holdings, national holdings, national management companies, national companies and legal entities affiliated with them; the National Bank of the Republic of Kazakhstan, its departments, organizations forming part of the structure of the National Bank of the Republic of Kazakhstan, and legal entities in which fifty or more percent of the voting shares (participatory interests in the authorized capital) are owned by the National Bank of the Republic of Kazakhstan or are under its trust management, and legal entities affiliated with them; state enterprises as property complexes, legal entities in which fifty or more percent of the voting shares (participatory interests in the authorized capital) are owned by the state, and legal entities affiliated with them, transferred into trust management to individuals or non-state legal entities with the right of subsequent buyout.

According to Article 20-1 of the Law of the Republic of Kazakhstan dated March 30, 1995, “On the National Bank of the Republic of Kazakhstan,” employees of the National Bank of Kazakhstan and its departments are persons who are not civil servants and exercise official powers in the National Bank of Kazakhstan and its departments aimed at implementing the tasks and functions of the state.

Official powers mean the rights and duties stipulated for a specific state position of employees of the National Bank of Kazakhstan and its departments, corresponding to the goals and objectives facing the National Bank of Kazakhstan.

The positions of employees of the National Bank of Kazakhstan and its departments include: in the central office and representative offices — directors of departments and their deputies, heads of representative offices, heads of directorates and their deputies, assistants and advisers to the Chairman of the National Bank, consultants, press secretaries, heads of divisions, chief specialists, leading specialists and specialists; in branches — directors of branches and their deputies, heads of offices, heads of divisions and their deputies, heads of valuables storage facilities, heads of cash-in-transit groups, heads of cash desks and storage facilities, chief specialists, leading specialists and specialists.

Political civil servants and technical employees of the National Bank of Kazakhstan and its departments are not considered employees of the National Bank of Kazakhstan and its departments.

Technical employees of the National Bank of Kazakhstan and its departments are persons who are not civil servants and perform labor duties related to servicing and ensuring the functioning of the National Bank of Kazakhstan and its departments. The list of technical employee positions shall be approved by the Board of Directors of the National Bank of Kazakhstan.

By the Law of the Republic of Kazakhstan dated April 19, 2019, “On Amendments and Additions to Certain Legislative Acts of the Republic of Kazakhstan on Transport Issues,” employees of the authorized organization in the field of civil aviation operating in accordance with the legislation of the Republic of Kazakhstan on the use of the airspace of the Republic of Kazakhstan and aviation activities were included among persons equated to persons authorized to perform state functions. This amendment was introduced due to the high degree of social responsibility of employees in this category and the strategic importance of aviation and activities involving the use of airspace. Prior to the introduction of this amendment, certain positions held by employees of the authorized organization in the field of civil aviation operating in accordance with the legislation of the Republic of Kazakhstan on the use of the airspace of the Republic of Kazakhstan and aviation activities did not fall within the concepts of “official,” “person authorized to perform state functions” or “person equated to a person authorized to perform state functions.”

In accordance with the Resolution of the Government of the Republic of Kazakhstan dated July 25, 2019, “On Designating the Authorized Organization in the Field of Civil Aviation,” the authorized organization in the field of civil aviation is the joint-stock company “Aviation Administration of Kazakhstan.”

On similar grounds, employees of the authorized body for regulation, control and supervision of the financial market and financial organizations were included among persons equated to persons authorized to perform state functions (in accordance with the Law of the Republic of Kazakhstan dated July 3, 2019, “On Amendments and Additions to Certain Legislative Acts of the Republic of Kazakhstan on the Regulation and Development of the Financial Market, Microfinance Activities and Taxation”).

In accordance with subparagraph 3) of Article 1 of the Law of the Republic of Kazakhstan dated July 4, 2003, “On State Regulation, Control and Supervision of the Financial Market and Financial Organizations,” the authorized body for regulation, control and supervision of the financial market and financial organizations is a state body exercising state regulation, control and supervision of the financial market and financial organizations.

The financial market is a set of relations associated with the provision and consumption of financial services, as well as the issuance and circulation of financial instruments (subparagraph 5) of Article 1 of the above-mentioned Law).

A financial organization is a legal entity carrying out entrepreneurial activities involving the provision of financial services (subparagraph 4) of Article 1 of the above-mentioned Law).

Employees of the authorized body are persons who are not civil servants and exercise official powers in the authorized body aimed at implementing the tasks and functions of the state (Article 15-11 of the above-mentioned Law).

28-1) Official document — a document created by an individual or legal entity, drawn up and certified in accordance with the procedure established by the legislation of the Republic of Kazakhstan.

The inclusion of the concept of “official document” in Article 3 of the Criminal Code is due to the fact that this term is not explained at the legislative level in any regulatory legal act, while the Special Part of the Criminal Code contains provisions establishing liability for the use and forgery of official documents (Articles 306, 369, 383, 384 and 385). Law enforcement practice encounters significant difficulties due to the absence of a legislative definition of the concept of “official document” and the resulting differing views among legal scholars.

Given that the source of creation of an official document may be either an individual or a legal entity, it should be assumed that the creation of an official document means the preparation and issuance of a document on behalf of a particular individual or legal entity. In other words, in this case, what is primarily meant is the legal attribution of the document to a particular individual or legal entity (rather than its actual authorship).

However, in my opinion, the use in the definition of an official document of the established terminological pair “individual or legal entity” is not entirely appropriate, since organizations created and operating without the formation of a legal entity exist legally in the Republic of Kazakhstan. Such organizations may include, for example, certain non-profit organizations, such as public associations. Trade unions, in some cases, operate according to the organizational model of organizations created without the formation of a legal entity.

At the same time, as practice shows, the concept of “creation of a document by an individual or legal entity” is interpreted broadly, and where a document is created on behalf of an organization but confirmation of its status as a legal entity cannot be found, the document is considered to have been created by an individual as a matter of fact. Indeed, one way or another, the creation of any document always involves a particular individual or several individuals who prepare, sign and provide it with the necessary details.

The mandatory characteristics of an official document are its preparation and certification in accordance with the procedure established by law.

Preparation of a document should be understood as giving it the prescribed form (written or electronic) and providing it with the necessary details (for example, the title of the document, the monetary amount payable, the name of the payer, their bank and account number, etc.).

Certification of a document shall mean the placement (or other provision) of certification details confirming its authenticity and genuineness (attribution to its source), such as the personal signature of an authorized person, the seals of an organization, the presence of a numbered corporate letterhead (if the document is created on behalf of an organization), etc.

At the same time, an essential condition is that the procedures for creating, preparing and certifying the document comply with all the requirements of the current legislation.

If at least one of the listed conditions (characteristics of an official document) is absent, the document cannot be recognized as an official document.

In this regard, law enforcement practice encounters numerous problems concerning the recognition of a particular document as an official document. One example is the question of whether a submission concerning the elimination of circumstances that contributed to the commission of a criminal offense and other violations of the law can be recognized as an official document. In accordance with Article 200 of the Criminal Procedure Code, upon establishing, during criminal proceedings, circumstances that contributed to the commission of a criminal offense, the person conducting the pre-trial investigation shall have the right to submit to the relevant state bodies, organizations or persons performing management functions therein a submission concerning the adoption of measures to eliminate these circumstances or other violations of the law. Such submissions shall be considered, with mandatory notification of the measures taken, within one month.

A submission concerning the elimination of circumstances that contributed to the commission of a criminal offense and other violations of the law is a document that must be registered by the documentation support department and, accordingly, signed by the person conducting the pre-trial investigation, as well as contain the necessary registration details. However, despite this, in my opinion, the submission concerning the elimination of circumstances that contributed to the commission of a criminal offense and other violations of the law cannot be confidently classified as an official document, since, as noted above, if at least one of the listed conditions (characteristics of an official document) is absent, the document cannot be recognized as official (the submission is issued in an arbitrary form and is not prepared on official letterhead). Furthermore, the issue of criminal liability for unlawful actions related to the issuance of the above-mentioned submission may formally be discerned, among all the aforementioned elements of criminal offenses, only within the framework of Article 269 of the Criminal Code, “Official Forgery.”

Thus, I believe that a submission concerning the elimination of circumstances that contributed to the commission of a criminal offense and other violations of the law is a document related to a particular criminal case but does not have the status of an official document.

29. Corruption-related crimes — acts provided for by Articles 189 (subparagraph 2) of part three), 190 (subparagraph 2) of part three), 218 (subparagraph 1) of part three), 234 (subparagraph 1) of part three), 249 (subparagraph 2) of part three), 361, 362 (subparagraph 3) of part four), 364, 365, 366, 367, 368, 369, 370, 450, 451 (subparagraph 2) of part two) and 452 of this Code.

In accordance with subparagraph 6) of Article 1 of the Law of the Republic of Kazakhstan “On Combating Corruption,” corruption means the unlawful use by persons holding a responsible state position, persons authorized to perform state functions, persons equated to persons authorized to perform state functions, and officials of their official powers and related opportunities for the purpose of obtaining or extracting, personally or through intermediaries, property or non-property benefits and advantages for themselves or third parties, as well as bribery of such persons by providing benefits and advantages.

Text

An analysis of the definition of corruption makes it possible to identify the following essential characteristics:

corruption is the unlawful use by persons holding a responsible state position, persons authorized to perform state functions, persons equated to persons authorized to perform state functions, and officials of their official powers and related opportunities for the purpose of obtaining or extracting, personally or through intermediaries, property or non-property benefits and advantages for themselves or third parties;

corruption also includes the bribery of such persons by providing benefits and advantages.

Subjects of corruption-related offenses are divided into persons holding a responsible state position; persons authorized to perform state functions; persons equated to persons authorized to perform state functions; and officials.

The Criminal Code distinguishes between two types of subjects of corruption-related crimes: general and special. The general subject is a sane individual who has reached the age of sixteen and has committed a crime provided for by Articles 367 “Giving a Bribe” and 368 “Mediation in Bribery” of the Criminal Code. Other corruption-related crimes provide only for a special subject, which is divided into four categories: a person authorized to perform state functions; a person equated to persons authorized to perform state functions; an official; and a person holding a responsible state position.

The criteria for classifying criminally punishable acts as corruption-related crimes generally include the commission of the act by the specified special subject; the use by that person of their official powers in doing so; and the pursuit of the objective of extracting benefits and advantages for themselves or other persons or organizations, or causing harm to other persons or organizations.

Assessing corruption-related acts as serious offenses, the legislator did not introduce the category of corruption-related criminal misdemeanors into the Code, defining the degree of public danger of all such acts as crimes.

For the commission of corruption-related crimes, the legislator has provided for the unconditional application of confiscation of property; mandatory deprivation of all state awards, special, military or honorary titles, class ranks, diplomatic ranks and qualification classes held; lifelong deprivation of the right to hold positions in the civil service and the public sector of the economy; a prohibition on conditional sentencing and release from criminal liability in connection with reconciliation, establishment of a surety, or expiration of the limitation period; and, in the sanctions of articles concerning bribery (accepting, giving and mediation in bribery), fines calculated as multiples of the amount of the bribe.

29-1) Especially grave military-related crimes committed in wartime — acts provided for by Articles 160 (part two), 163 (part two), 164 (part two) and 168 (part two) of this Code.

Article 3 of the Criminal Code was supplemented with subparagraph 29-1), which establishes a new concept for criminal legislation, namely “especially grave military-related crimes committed in wartime,” as well as a list of such crimes.

This amendment was introduced by the 2021 Law of the Republic of Kazakhstan “On Amendments and Additions to the Criminal Code of the Republic of Kazakhstan on Issues of the Death Penalty” in connection with the further reduction of the scope of application of the death penalty.

In turn, these amendments implement the international legal obligations of Kazakhstan arising from the Law of the Republic of Kazakhstan dated January 2, 2021, “On Ratification of the Second Optional Protocol to the International Covenant on Civil and Political Rights, Aiming at the Abolition of the Death Penalty.” The said Law states: “To ratify the Second Optional Protocol, adopted in New York on December 15, 1989, with the following reservation: ‘The Republic of Kazakhstan, in accordance with Article 2 of the Second Optional Protocol, reserves the right to apply the death penalty in wartime following conviction for the commission of especially grave military-related crimes committed in wartime.’”

Now the death penalty, as the highest measure of punishment, may be imposed only for four crimes of this type — especially grave military-related crimes committed in wartime. These include the following acts:

1. those provided for by Article 160 of the Criminal Code (part 2), “Unleashing or Waging an Aggressive War”;
2. those provided for by Article 163 of the Criminal Code (part 2), “Use of Prohibited Means and Methods of Warfare” (namely, the use of weapons of mass destruction prohibited by an international treaty of the Republic of Kazakhstan);
3. those provided for by Article 164 of the Criminal Code (part 2), “Violation of the Laws and Customs of War” (namely, the killing of persons who have laid down their arms or have no means of defense, the wounded, the sick, shipwrecked persons, medical personnel, sanitary and religious personnel, prisoners of war, the civilian population in occupied territory or in an area of military operations, and other persons enjoying international protection during military operations);
4. those provided for by Article 168 of the Criminal Code (part 2), “Genocide Committed in Wartime.”

It is evident from the above list that not a single offense classified as a military crime (Chapter 18 of the Criminal Code) has been included among especially grave military-related crimes committed in wartime (previously, the sanctions of seven military crime offenses provided for the death penalty). The death penalty has also been excluded from the sanctions of all elements of especially grave terrorist crimes involving loss of life (part 4 of Article 170, part 3 of Article 175, Articles 177, 178, 184, and part 4 of Article 255 of the Criminal Code).

All four elements of especially grave military-related crimes committed in wartime belong to Chapter 4 of the Special Part of the Criminal Code, “Crimes Against Peace and Security of Humanity.” Under the international legal classification, these elements are crimes in the field of international humanitarian law (a body of international legal norms and principles governing the protection of victims of war and restricting the methods and means of warfare; codified in the Hague Conventions, the 1949 Geneva Conventions for the Protection of War Victims and the Additional Protocols thereto of 1977, resolutions of the UN General Assembly, etc.).

Thus, the Republic of Kazakhstan has retained the legal capacity to impose the death penalty only for four of the most socially dangerous especially grave military-related crimes committed in wartime.

This position of the legislator demonstrates Kazakhstan's commitment to global trends aimed at reducing the scope of application of the death penalty and gradually abandoning this type of punishment in the national criminal law system. At the same time, the position of the Republic of Kazakhstan is based on a phased (step-by-step) reduction of the scope of application of this type of punishment, taking into account the minimization of all possible legal and other risks.

30. Terrorist crimes — acts provided for by Articles 170, 171, 173, 177, 178, 184, 255, 256, 257, 258, 259, 260, 261, 269 and 270 of this Code.

According to the Law of the Republic of Kazakhstan dated July 13, 1999, “On Combating Terrorism,” terrorism is the ideology of violence and the practice of influencing decision-making by state bodies, local self-government bodies or international organizations through the commission or threat of commission of violent and (or) other criminal acts associated with intimidating the population and aimed at causing harm to individuals, society and the state.

The legislator defines the criminal law category of terrorist crimes by listing specific elements of criminal offenses. This legislative technique is обусловлена by the rational presentation of the provisions of criminal law.

According to the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated December 8, 2017, “On Certain Issues of Judicial Practice in the Application of Legislation on Terrorist and Extremist Crimes,” terrorist crimes cause substantial harm to public security and undermine the foundations of statehood. Therefore, the timely and proper consideration of cases in these categories is one of the most important conditions for ensuring state security, protecting the rights, freedoms and legitimate interests of citizens and organizations, and implementing the Constitution of the Republic of Kazakhstan, laws and other regulatory legal acts, as well as international treaties of the Republic of Kazakhstan.

The subject of terrorist crimes provided for by Articles 173, 177, 178, 184, 255, 256, 257 (parts 1 and 2), 258, 261 and 269 of the Criminal Code may be a person who has reached the age of fourteen at the time of committing the crime.

Criminal liability for the commission of other types of terrorist-related crimes arises from the age of sixteen.

The subjective element of an act of terrorism is characterized by direct intent and a special purpose. The special purposes of an act of terrorism are: disruption of public security; intimidation of the population; influencing the adoption of decisions by state bodies of the Republic of Kazakhstan, foreign states and international organizations, or the purpose of terminating the activities of state or public figures or taking revenge for such activities; provocation of war; and complicating international relations.

When considering cases involving acts of terrorism, it is always necessary to establish whether the subject had the special purpose constituting an element of the subjective side of the crime. At the same time, the existence of any one of the listed special purposes on the part of the perpetrator is sufficient to recognize the act as an act of terrorism.

If none of the purposes of committing the acts is established, the perpetrators shall be held liable under other relevant articles of the Criminal Code.

In accordance with subparagraph 1) of Article 4 of the Law of the Republic of Kazakhstan “On National Security of the Republic of Kazakhstan,” public security as the object of terrorism is understood as a state of protection of the life, health and well-being of citizens, the spiritual and moral values of Kazakhstani society and the social security system against real and potential threats, in which the integrity of society and its stability are ensured.

According to subparagraph 6) of Article 1 of the Law “On Combating Terrorism,” an act of terrorism is the commission or threat of commission of an explosion, arson or other actions creating a danger of loss of life, causing significant property damage or other socially dangerous consequences, if such actions are committed for the purpose of disrupting public security, intimidating the population, influencing decision-making by state bodies of the Republic of Kazakhstan, a foreign state or an international organization, provoking war or complicating international relations, as well as an attack on a person's life committed for the same purposes, and an attack on the life of a state or public figure committed for the purpose of terminating their state or other political activities or in revenge for such activities, or an attack on a person's life associated with an attack on persons and organizations enjoying international protection, buildings, structures, the taking of hostages, the seizure of buildings, structures, means of communication and communications facilities, hijacking, as well as the seizure of an aircraft or watercraft, railway rolling stock or other public transport.

31. Terrorist group — an organized group pursuing the goal of committing one or more terrorist crimes.

A terrorist group is a type of organized group whose members have previously united for the purpose of committing one or more terrorist crimes. Like an organized group, a terrorist group is characterized by such features and characteristics as stability, a stable membership, close relationships between members, coordination of their actions, consistency of forms and methods of criminal activity, and the duration of its existence.

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, in accordance with subparagraph 31) of Article 3 of the Criminal Code and subparagraph 15) of Article 1 of the Law “On Combating Terrorism,” a terrorist group is an organized group pursuing the goal of committing one or more terrorist crimes.

The creation of a terrorist group (part 1 of Article 257 of the Criminal Code) is considered a completed crime from the moment the group is actually formed, that is, from the moment several persons unite into a group.

Leadership of a group consists in exercising management functions in relation to the group as well as its individual members for the purpose of ensuring the group's activities.

Leadership of a group may be expressed, in particular, in approving plans for terrorist activities, distributing criminal responsibilities within the group, directing group members during the commission of individual acts of terrorism, as well as performing other actions aimed at achieving specific objectives (for example, organizing logistical support and taking security measures for group members).

Criminal liability under part 2 of Article 257 of the Criminal Code for participation in a terrorist group arises in cases where the members of that group are aware of its illegality and their membership in it and act to achieve terrorist objectives.

Participation in the activities of a group should be understood as joining the group (for example, taking an oath, membership in an organization engaged in terrorist activities, or carrying out assignments and instructions from the group leader). A criminal offense in the form of participation in a group is considered completed from the moment a person joins the group with the intention of participating in terrorist activities or in the preparation or commission of one or more terrorist-related criminal offenses.

Where members of a terrorist group or an illegal armed formation commit a specific terrorist crime, their actions must be qualified cumulatively under criminal offenses provided for by part 2 of Article 257, part 2 of Article 267 of the Criminal Code and the relevant articles of the Criminal Code (for example, Articles 255, 256 and 259).

32. A person occupying a leading position — a person vested by the leaders of organized groups (criminal organizations) with powers to coordinate criminal actions, or a person whom the group members recognize as having the right to make the most responsible decisions affecting their interests and determining the direction and nature of their criminal activities.

The above term represents a generalized criminological description of criminal roles within a criminal community.

The concept under consideration is used in part 5 of Article 263 of the Criminal Code, “Creation and Leadership of a Criminal Community, as well as Participation Therein.”

A leader is understood as a person in a group (organization) who enjoys recognized authority within it and possesses influence through which they can exert managerial influence over that group (organization). A leader may be a member of a group whom the majority of its members recognize as having the right to make responsible decisions in situations significant to the group, that is, the most authoritative individual who actually plays a central role in organizing joint activities and regulating relations within the group. In most cases, leadership in an informal group is expressed through the leader establishing rules of conduct for group members and monitoring compliance with those rules. A leader may simultaneously be the head of the group, but this need not necessarily be the case.

In an organized criminal environment, leadership may be expressed both in the form of the activities of an organizer or leader and in the form of aiding and abetting.

In order to determine whether a person occupies a leading position in a criminal community, it is necessary to establish their position in the criminal hierarchy, the specific actions they took in creating or leading a criminal community (criminal organization), coordinating criminal actions, establishing stable links between various independently operating organized groups, or dividing spheres of criminal influence and criminal proceeds, as well as other criminal actions indicating their authority and leadership in the criminal community (criminal organization). Leadership of such a person in the criminal hierarchy may also be evidenced by the existence of ties with extremist and (or) terrorist organizations or the existence of corrupt connections, etc.

33. Transnational criminal community — an association of two or more transnational criminal organizations.

A transnational criminal community is an association of two or more transnational criminal organizations.

Criminal liability for the creation and leadership of a transnational criminal community, as well as participation therein, is established by Article 265 of the Criminal Code.

It should be noted that the UN Convention against Transnational Organized Crime, signed in Palermo on December 13, 2000, does not distinguish such a form of organized crime, since it is assumed that a criminal community and a criminal organization are covered by the concept of an “organized criminal group.” The classification of forms of organized crime into an organized group, a criminal organization and a criminal community is characteristic of the criminal legislation of the Commonwealth of Independent States countries.

Thus, in accordance with paragraph 2 of Article 3 of the said Convention: “An offence is transnational in nature if: (a) it is committed in more than one State; (b) it is committed in one State but a substantial part of its preparation, planning, direction or control takes place in another State; (c) it is committed in one State but involves an organized criminal group that engages in criminal activities in more than one State; or (d) it is committed in one State but has substantial effects in another State.”

In order to recognize a criminal community as transnational, it is necessary to establish the transnational nature of at least two criminal organizations that have joined together.

The transnational nature of crimes committed by a criminal community is determined according to the same rules as those applicable to a transnational organized group.

34. Transnational criminal organization — a criminal organization pursuing the goal of committing one or more criminal offenses in the territory of two or more states, or in the territory of one state where the commission of the act is organized or its execution is directed from the territory of another state, as well as where citizens of another state participate.

A transnational criminal group is a type of criminal organization, that is, an organized group whose participants are divided into organizationally, functionally and (or) territorially separate groups (structural subdivisions).

Structural subdivisions of a criminal organization are groups of persons participating in or directing the commission of criminal offenses, separated according to organizational, functional and (or) territorial criteria.

Criminal liability for the creation and leadership of a transnational criminal organization, leadership of a structural subdivision of a transnational criminal organization, as well as participation therein, is established by Article 264 of the Criminal Code.

The transnational nature of crimes committed by a criminal organization is determined according to the same rules as those applicable to a transnational organized group.

The issue of organizing the activities of a transnational criminal group solely for the purpose of committing crimes (rather than criminal offenses) is also legitimate, as is the case with regard to a criminal community (see the commentary to subparagraph 23) of this Article).

35. Transnational organized group — an organized group pursuing the goal of committing one or more criminal offenses in the territory of two or more states, or in the territory of one state where the commission of the act is organized or its execution is directed from the territory of another state, as well as where citizens of another state participate.

The requirements for the separate criminalization of crimes committed by a transnational organized criminal group arise from the provisions of the UN Convention against Transnational Organized Crime, signed in Palermo on December 13, 2000, and ratified by the Republic of Kazakhstan by the Law dated June 4, 2008.

In the said Convention, an organized criminal group is defined as a structured group of three or more persons, existing for a period of time and acting in concert with the aim of committing one or more serious crimes or offenses established in accordance with the Convention, in order to obtain, directly or indirectly, a financial or other material benefit.

According to the Convention, the transnational nature of a crime is determined as follows:

it is committed in more than one state;

it is committed in one state, but a substantial part of its preparation, planning, direction or control takes place in another state;

it is committed in one state, but involves an organized criminal group that engages in criminal activities in more than one state;

it is committed in one state, but has substantial effects in another state.

Criminal liability for the creation and leadership of a transnational organized group, as well as participation therein, is established by Article 264 of the Criminal Code.

A transnational organized group is a type of organized group whose members have previously united for the purpose of committing one or more criminal offenses in the territory of two or more states, or in the territory of one state where the commission of the act is organized or its execution is directed from the territory of another state, as well as where citizens of another state participate in the group.

Like an organized group, a transnational organized group is characterized by such features and characteristics as stability, a stable membership, close relationships between members, coordination of their actions, consistency of forms and methods of criminal activity, and the duration of its existence.

Unlike the Palermo Convention, the definition of a transnational organized group in the criminal legislation of Kazakhstan is broader and encompasses the definition provided in the Convention as a general concept in relation to a particular one. Under the criminal legislation of Kazakhstan, the mercenary orientation of criminal activity is irrelevant for recognizing a group as organized; the purpose of the group's existence is not limited to serious crimes but encompasses any criminal offense.

According to the Convention, a specific feature of an organized criminal group is its structured nature, which means that relationships of subordination are presumed to exist between three or more persons and that the presence of an organizer (leader) is mandatory. National criminal legislation also identifies the organizer as a person who created or led an organized group. At the same time, structural organization is identified as a criterion defining a criminal organization.

The definition provided in the Convention refers to the existence of a group over a certain period of time and coordinated actions. In the criminal legislation of Kazakhstan, these characteristics are expressed through the criterion of stability, which means the existence of a long-standing and durable criminal relationship between participants and the joint commission of criminal offenses.

When determining the criminality and punishability of acts committed by a transnational organized group, it is necessary to be guided by the provisions of Article 7 of the Criminal Code, according to which a criminal offense shall be recognized as having been committed in the territory of the Republic of Kazakhstan if the act was commenced, continued or completed in the territory of the Republic of Kazakhstan.

On this basis, the transnational nature of a crime committed by an organized group is determined according to the following criteria:

a criminal offense is committed by an organized group in the territory of two or more states, one of which is the Republic of Kazakhstan;

a criminal offense is committed by an organized group in the territory of the Republic of Kazakhstan, while the commission of the act is organized or its execution is directed from the territory of a foreign state;

a criminal offense is committed by an organized group in the territory of a foreign state, while the commission of the act is organized or its execution is directed from the territory of the Republic of Kazakhstan;

a criminal offense is committed by an organized group in the territory of the Republic of Kazakhstan with the participation in that group of citizens of another state;

a criminal offense is committed by an organized group in the territory of a foreign state with the participation in that group of citizens of the Republic of Kazakhstan.

At the same time, there are substantial contradictions between the provisions of subparagraph 35) of Article 3 of the Criminal Code and the provisions of the UN Palermo Convention against Transnational Organized Crime regarding the definition of the characteristics of transnational criminal activity (in relation to the criterion associated with the foreign citizenship of two or more members of a criminal group). However, despite these contradictions, in accordance with the Constitution and legislation of the Republic of Kazakhstan, the application of the provisions of criminal legislation on transnational crimes must be carried out in accordance with the requirements of subparagraphs 33), 34) and 35) of Article 3 of the Criminal Code of the Republic of Kazakhstan. The provisions of the international UN Palermo Convention may be applied in the territory of the Republic of Kazakhstan (in the regulation of criminal legal relations) only after their implementation into domestic criminal legislation (see the commentary to subparagraph 33) of Article 3).

36. Organized group — a stable group of two or more persons who have previously united for the purpose of committing one or more criminal offenses.

An organized group differs from a group of persons and a group of persons acting upon prior conspiracy by the criterion of stability.

The stability of a group may be evidenced, in particular, by such characteristics as the stability of its membership, close relationships between its members, coordination of their actions, consistency of forms and methods of criminal activity, and the duration of its existence.

A group may be recognized as having united in advance only if its members entered into an agreement with an unspecified intent to commit one or more crimes.

Conspiracy is one of the elements of preparation for a crime. Preparation is always carried out with direct intent. This means that the intent of a group of persons acting upon prior conspiracy is always specific. Each participant in the group is aware of the specific crime for which the group is preparing. If circumstances arise that prevent the crime from being completed, the group disbands. For a new specific crime, they need to reach a new agreement.

In the case of an organized group, persons unite with an unspecified intent; the criminal nature of the group's activities is agreed upon in general terms, for example, for robberies and murders or terrorist acts. At the same time, the organized group exists on a stable basis; for example, the acquisition of instruments of crime may begin before a specific crime has been determined. Even if circumstances arise that prevent the completion of a specific crime, the group remains aware of the general criminal nature of its activities and does not repeat the process of joining forces or change its membership.

37. Organizational and administrative functions — the right, granted in accordance with the procedure established by the legislation of the Republic of Kazakhstan, to issue orders and directives binding on persons subordinate in service, as well as to apply incentives and disciplinary penalties to subordinates.

According to subparagraph 14) of Article 1 of the Law of the Republic of Kazakhstan “On Combating Corruption,” organizational and administrative functions are the right, granted in accordance with the procedure established by the legislation of the Republic of Kazakhstan, to issue orders and directives binding on persons subordinate in service, as well as to apply incentives and disciplinary penalties to subordinates.

Organizational and administrative functions are one of the types of functions whose performance determines whether a person is an official or a person performing management functions in a commercial or other organization as a special subject of criminal offenses.

Organizational and administrative functions mean the activities of persons in exercising the powers of an organization's executive body as provided for by legislation and constituent documents. These functions include general management of the workforce, recruitment and placement of personnel, organization and supervision of employees' work, and maintenance of discipline, expressed through the application of incentives and imposition of disciplinary penalties.

Organizational and administrative functions include the powers of persons to make decisions that have legal significance and entail certain legal consequences (for example, the issuance of a temporary disability certificate by a medical worker, the determination of the fact of a citizen's disability by an employee of a medical and social assessment institution, or the administration of examinations and awarding of grades by a member of a state examination (certification) commission).

An important indicator of belonging to this category of officials is the presence of other employees under their supervision or independent responsibility for a particular area of work.

Independent responsibility for a particular area of work should be understood as the official powers of an official expressed, for example, in the right of that official to issue official documents on behalf of a state body or organization confirming a particular fact.

37-1) Funds received from foreign sources — money and (or) other property provided by foreign states, international and foreign organizations, foreigners and stateless persons.

The concept of “commission of an act using funds received from foreign sources” was first established in the criminal legislation of Kazakhstan for the purpose of strengthening efforts to combat the most dangerous crimes against the foundations of the constitutional order and state security, as well as public security. Financing criminal activities from foreign sources indicates an increased degree of public danger of the act and its organized nature.

The concept of “commission of an act using funds received from foreign sources” has been included as an aggravating qualifying element in the following criminal offenses:

• part 2 of Article 174 of the Criminal Code, “Incitement of Social, National, Tribal, Racial, Class or Religious Discord”;
• part 2 of Article 179 of the Criminal Code, “Propaganda or Public Calls for the Seizure or Retention of Power, as well as the Seizure or Retention of Power or the Violent Change of the Constitutional Order of the Republic of Kazakhstan”;
• part 2 of Article 180 of the Criminal Code, “Separatist Activities”;
• part 2 of Article 256 of the Criminal Code, “Propaganda of Terrorism or Public Calls to Commit an Act of Terrorism.”

As a constituent element of the basic offense, this criterion is provided for in part 1 of Article 272 of the Criminal Code, “Mass Riots.”

In accordance with Article 127 of the Civil Code, “Money (Currency),” the monetary unit of the Republic of Kazakhstan is the tenge. The tenge is legal tender and must be accepted at its nominal value throughout the territory of the Republic of Kazakhstan. Payments in the territory of the Republic of Kazakhstan are made in the form of cash and non-cash settlements. The cases, procedure and conditions for settlements in foreign currency in the territory of the Republic of Kazakhstan are determined by the country's legislation.

 According to subparagraph 67) of Article 1 of the Law of the Republic of Kazakhstan dated July 26, 2016, “On Payments and Payment Systems,” electronic money means unconditional and irrevocable monetary obligations of the issuer of electronic money, stored in electronic form and accepted as a means of payment in the electronic money system by other participants of the system.

In S. I. Ozhegov’s Explanatory Dictionary of the Russian Language, property is understood as that which is in someone’s ownership and belongs to someone.

Foreign states are states other than the Republic of Kazakhstan and their state authorities.

Organizations are understood as a group of people working together under the leadership of a manager and performing certain tasks (as a rule, legal entities).

At the same time, there are organizations operating without the formation of a legal entity. One of the widespread types of such organizations is public associations.

Accordingly, the term “foreign organizations” should be understood to mean both organizations established and operating with the formation of a legal entity and those operating without the formation of a legal entity in a state other than the Republic of Kazakhstan.

International organizations are associations of an intergovernmental or non-governmental nature established on the basis of agreements. In other words, they are associations of states established in accordance with international law and on the basis of an international treaty for the purpose of carrying out cooperation in the political, economic, cultural, scientific and technical, legal and other fields.

International organizations are divided into international intergovernmental (interstate) organizations and international non-governmental (non-state, public) organizations.

International intergovernmental (interstate) organizations are associations of states or state institutions established on the basis of an international treaty between states or their authorized institutions.

International non-governmental (non-state, public) organizations are associations whose members (on the basis of joint activities to protect common interests and achieve statutory objectives in the civil, political, cultural, social and economic spheres) are entities from different countries and which are registered in a state whose legislation allows foreign individuals or legal entities to establish public organizations and be elected to the governing body of such an organization.

In accordance with the Law of the Republic of Kazakhstan dated June 19, 1995, “On the Legal Status of Foreigners,” foreigners in the Republic of Kazakhstan are recognized as persons who are not citizens of the Republic of Kazakhstan and have evidence of their belonging to the citizenship of another state.

Stateless persons are recognized as persons who are not citizens of the Republic of Kazakhstan and do not have evidence of their belonging to the citizenship of another state.

38. large-scale damage and large amount — in Articles: 185, 186 and 458 — damage in an amount five hundred times exceeding the monthly calculation index; 188, 188-1, 191 and 192 — the value of property or the amount of damage five hundred times exceeding the monthly calculation index; 189, 190, 194, 195, 196, 197, 200, 202, 204, 269-1, 295-1 and 425 — the value of property or the amount of damage one thousand times exceeding the monthly calculation index; 198 and 199 — the amount of damage or the value of rights to use intellectual property objects, or the value of copies of copyright and (or) related rights objects, or goods containing inventions, utility models, industrial designs, selection achievements or topologies of integrated circuits, one thousand times exceeding the monthly calculation index; 214 — income in an amount exceeding ten thousand monthly calculation indices; 214, 221, 237, 238 (part one), 239 (parts one and two), 242, 243 and 250 (part two) — damage caused to an individual in an amount two thousand times exceeding the monthly calculation index, or damage caused to an organization or the state in an amount ten thousand times exceeding the monthly calculation index.

216 — damage caused to an individual in an amount two thousand times exceeding the monthly calculation index, or damage caused to an organization or the state in an amount exceeding twenty thousand monthly calculation indices; 217 — income in an amount exceeding one thousand monthly calculation indices; 218 — money and (or) other property obtained by criminal means in an amount exceeding twenty thousand monthly calculation indices; 219, 222, 223, 224, 225, 226, 227, 228 and 241 — damage caused to an individual in an amount two hundred times exceeding the monthly calculation index, or damage caused to an organization or the state in an amount two thousand times exceeding the monthly calculation index; 220, 229, 230 — damage in an amount ten thousand times exceeding the monthly calculation index; 221 — income in an amount exceeding twenty thousand monthly calculation indices; 231 — the value of banknotes, coins, securities and foreign currency in respect of which counterfeiting was committed, five hundred times exceeding the monthly calculation index; 234 — the value of moved goods exceeding ten thousand monthly calculation indices; 235 — the amount of funds not repatriated in national and (or) foreign currency exceeding forty-five thousand monthly calculation indices; 236 — the value of unpaid customs duties, customs fees, taxes, special, anti-dumping and countervailing duties exceeding five thousand monthly calculation indices; 238 (part two) — damage caused to a medium-sized business entity in an amount twenty thousand times exceeding the monthly calculation index, or to a large business entity in an amount forty thousand times exceeding the monthly calculation index; 244 — the amount of payments not received into the budget exceeding twenty thousand monthly calculation indices; 245 — the amount of payments not received into the budget exceeding fifty thousand monthly calculation indices for the audited period, provided that the amount of taxes and other mandatory payments to the budget accrued based on the results of a tax audit for one calendar year within the audited period exceeds ten percent of the total amount of all taxes and other mandatory payments to the budget calculated by the taxpayer for that calendar year; 247 — the amount received by a person or the value of services provided to that person exceeding three hundred monthly calculation indices; 253 — the amount of money, the value of securities, other property or benefits of a property nature exceeding five hundred monthly calculation indices; 258 — the amount of money, the value of property, benefits of a property nature and services provided exceeding one thousand monthly calculation indices for the audited period, provided that the amount of taxes and other mandatory payments to the budget accrued based on the results of a tax audit for one calendar year within the audited period exceeds 10% of the total amount of all taxes and other mandatory payments to the budget calculated by the taxpayer for that calendar year; 274 — damage caused to an individual in an amount two thousand times exceeding the monthly calculation index, or damage caused to an organization or the state in an amount ten thousand times exceeding the monthly calculation index; 292 — damage caused to an individual in an amount one thousand times exceeding the monthly calculation index, or damage caused to an organization or the state in an amount two thousand times exceeding the monthly calculation index; 307 — income in an amount exceeding one thousand monthly calculation indices; 323 — the value of medicinal products and medical devices in respect of which falsification was committed, exceeding one thousand monthly calculation indices; 324, 325, 326, 328, 329, 330, 332, 333, 334, 335, 337, 338, 339, 340, 341 and 343 — the monetary value of the costs necessary to eliminate environmental damage or restore the consumer properties of natural resources, in an amount exceeding one thousand monthly calculation indices; 344 — the amount of damage exceeding two thousand monthly calculation indices; 350, 354, 355 and 356 — damage caused to an individual in an amount two hundred times exceeding the monthly calculation index, or damage caused to an organization or the state in an amount one thousand times exceeding the monthly calculation index; 365 — damage caused to an individual in an amount two hundred times exceeding the monthly calculation index, or damage caused to an organization or the state in an amount two thousand times exceeding the monthly calculation index; 366 and 367 — the amount of money, the value of securities, other property or benefits of a property nature exceeding three thousand and up to ten thousand monthly calculation indices; 399 — the value of special technical devices exceeding five thousand monthly calculation indices; in other articles — the amount of damage in an amount one thousand times exceeding the monthly calculation index.

Large-scale damage and a large amount are qualifying elements.

Large-scale damage and a large amount are specified in the following articles of the Criminal Code:

| Article number | Title of the article | Lower limit in MCI | Upper limit in MCI ||---|---|---:|---:|| 185 | Illegal collection, dissemination or disclosure of state secrets | 500 | — || 186 | Loss of carriers containing information constituting state secrets | 500 | — || 188 | Theft | 500 | 2000 || 189 | Misappropriation or embezzlement of entrusted property belonging to another | 1000 | 4000 || Part 3 of Article 189 | Misappropriation or embezzlement of entrusted property belonging to another | 1000 | — || 188-1 | Cattle theft | 500 | 2000 || 190 | Fraud | 1000 | 4000 || 191 | Robbery | 500 | 2000 || 192 | Assault robbery | 500 | 2000 || 194 | Extortion | 1000 | 4000 || 195 | Causing property damage through deception or abuse of trust | 1000 | — || 196 | Acquisition or sale of property knowingly obtained by criminal means | 1000 | — || 197 | Transportation, acquisition, sale and storage of oil and petroleum products, as well as oil processing without documents confirming the legality of their origin | 1000 | 4000 || 198 | Infringement of copyright and (or) related rights | 1000 | — || 199 | Infringement of rights to inventions, utility models, industrial designs, selection achievements or topologies of integrated circuits | 1000 | — || 200 | Unlawful taking possession of an automobile or other vehicle without the purpose of theft | 1000 | — || 202 | Intentional destruction of or damage to another's property | 1000 | 4000 || 204 | Negligent destruction of or damage to another's property | 1000 | 4000 || Part 1 of Article 214 | Illegal entrepreneurship, illegal banking, microfinance or collection activities | Individual — 2000; organization, state — 10,000 | — || Part 2 of Article 214 | Illegal entrepreneurship, illegal banking, microfinance or collection activities | 10,000 | 20,000 || 216 | Issuing an invoice without actually performing work, providing services or shipping goods | Individual — 2000; organization, state — 20,000 | Individual — 5000; organization, state — 50,000 || 217 | Establishment and management of a financial (investment) pyramid | 1000 | 5000 || 218 | Legalization (laundering) of money and (or) other property obtained by criminal means | 20,000 | — || 219 | Unlawful obtaining of a loan or misuse of a budget loan | Individual — 200; organization, state — 2000 | — || 220 | Misuse of funds received from the placement of bonds | 10,000 | — || Part 1 of Article 221 | Monopolistic activity | Individual — 2000; organization, state — 10,000 | — || Parts 2 and 3 of Article 221 | Monopolistic activity | 20,000 | — || 222 | Illegal use of a trademark | Individual — 200; organization, state — 2000 | — || 223 | Illegal obtaining and disclosure of information constituting a commercial or banking secret | Individual — 200; organization, state — 2000 | — || 224 | Violation by an issuer of the procedure for issuing equity securities | Individual — 200; organization, state — 2000 | — || 225 | Failure to provide information or provision of knowingly false information by an official of a securities issuer | Individual — 200; organization, state — 2000 | — || 226 | Entering knowingly false information into the register of securities holders | Individual — 200; organization, state — 2000 | — || 227 | Submission of knowingly false information by professional participants in the securities market | Individual — 200; organization, state — 2000 | — || 228 | Violation of the rules for conducting securities transactions | Individual — 200; organization, state — 2000 | — || 229 | Manipulation of the securities market | 10,000 | 20,000 || 230 | Illegal actions involving insider information | 10,000 | 20,000 || 231 | Production, storage, transportation or sale of counterfeit money or securities | 500 | — || 234 | Economic smuggling | 10,000 | 20,000 || 235 | Failure to comply with the requirement to repatriate national and (or) foreign currency | 45,000 | — || 236 | Evasion of payment of customs duties, customs fees, taxes, special, anti-dumping and countervailing duties | 5000 | — || Part 1 of Article 237 | Unlawful actions during rehabilitation and bankruptcy | Individual — 2000; organization, state — 10,000 | — || 238 | Intentional bankruptcy | Individual — 20,000; organization, state — 40,000 | — || Parts 1 and 2 of Article 239 | Causing insolvency | Individual — 2000; organization, state — 10,000 | — || 241 | Violation of the legislation of the Republic of Kazakhstan on accounting and financial reporting | Individual — 200; organization, state — 2000 | — || Part 2 of Article 242 | Submission of knowingly false information about banking transactions | Individual — 2000; organization, state — 10,000 | — || Part 2 of Article 243 | Illegal use of bank funds | Individual — 2000; organization, state — 10,000 | — || 244 | Evasion by an individual of payment of tax and (or) other mandatory payments to the budget | 20,000 | — || 245 | Evasion by organizations of payment of tax and (or) other mandatory payments to the budget | 20,000 | — || 247 | Receipt of unlawful remuneration | 300 | — || Part 2 of Article 250 | Abuse of authority | Individual — 2000; organization, state — 10,000 | — || 253 | Commercial bribery | 500 | 2000 || 258 | Financing of terrorist or extremist activities and other assistance to terrorism or extremism | 1000 | — || Part 2 of Article 269-1 | Illegal entry into a protected facility | 1000 | — || 274 | Dissemination of knowingly false information | Individual — 2000; organization, state — 10,000 | — || 292 | Violation of fire safety requirements | Individual — 1000; organization, state — 2000 | — || Part 2 of Article 295-1 | Illegal trafficking in precious metals and precious stones, raw materials containing precious metals | 1000 | — || 307 | Organization of illegal gambling business | 1000 | 5000 || 323 | Handling of falsified medicinal products or medical devices | 1000 | — || 324 | Violation of environmental requirements for economic or other activities | 1000 | 20,000 || 325 | Violation of environmental requirements when handling environmentally potentially hazardous chemical or biological substances | 1000 | 20,000 || 326 | Violation of environmental requirements when handling microbiological or other biological agents or toxins | 1000 | 20,000 || 328 | Pollution, contamination or depletion of water | 1000 | 20,000 || 329 | Air pollution | 1000 | 20,000 || 330 | Pollution of the marine environment | 1000 | 20,000 || 332 | Damage to land | 1000 | 20,000 || 333 | Violation of the rules for the protection and use of subsoil | 1000 | 20,000 || 334 | Unauthorized use of subsoil | 1000 | 20,000 || 335 | Illegal extraction of fish resources, other aquatic animals or plants | 1000 | — || 337 | Illegal hunting | 1000 | 20,000 || 338 | Violation of wildlife protection rules | 1000 | — || 339 | Illegal handling of rare and endangered, as well as prohibited-for-use species of plants or animals, their parts or derivatives | 1000 | 20,000 || 340 | Illegal felling, destruction or damage of trees and shrubs | 1000 | — || 341 | Destruction of or damage to forests | 1000 | — || 343 | Failure to take measures to eliminate the consequences of environmental pollution | 1000 | 20,000 || 344 | Violation of railway, air, sea or river transport safety rules or operating requirements | 2000 | — || 350 | Intentional rendering of vehicles or means of communication unusable | Individual — 200; organization, state — 1000 | — || 354 | Violation of safety rules during the construction, operation or repair of main pipelines | Individual — 200; organization, state — 1000 | — || 355 | Intentional damage to or destruction of pipelines | Individual — 200; organization, state — 1000 | — || 356 | Negligent damage to or destruction of pipelines | Individual — 200; organization, state — 1000 | — || 365 | Obstruction of lawful entrepreneurial activity | Individual — 200; organization, state — 2000 | Individual — 2000; organization, state — 10,000 || 366 | Taking a bribe | 3000 | 10,000 || 367 | Giving a bribe | 3000 | 10,000 || 399 | Illegal manufacture, production, acquisition, sale or use of special technical devices for covert acquisition of information | 5000 | — || 425 | Illegal actions involving property subjected to inventory or seizure or subject to confiscation | 1000 | 4000 || 458 | Disclosure of classified military information or loss of carriers containing classified military information | 500 | — || Articles of the Special Part of the Criminal Code not specified in paragraph 38) of Article 3 of the Criminal Code (considered within the concept of “other grave consequences”) | 1000 | 4000 |

Large-scale damage is mentioned in the definition of the concept of “grave consequences” (subparagraph 4) of Article 3 of the Criminal Code), that is, the infliction of large-scale damage is one of the harmful consequences recognized as a grave consequence. Therefore, in the articles of the Special Part of the Criminal Code that do not contain the qualifying element of “large-scale damage” but refer to the infliction of grave consequences, the latter should, in certain cases, be understood as damage in an amount five hundred times exceeding the monthly calculation index.

For example, in Articles 205–211 of the Criminal Code (Chapter 7 “Criminal Offenses in the Sphere of Informatization and Communications”), grave consequences should be understood to include, in particular, damage in an amount exceeding five hundred MCI.

If the element of “grave consequences” is mentioned in an article of the Special Part of the Criminal Code alongside the elements of large-scale and particularly large-scale damage, such damage is not covered by the element of “grave consequences.” In particular, this rule should be followed when qualifying acts under Article 204 of the Criminal Code, “Negligent Destruction of or Damage to Another's Property,” part one of which specifies the element of large-scale damage, while part two specifies particularly large-scale damage and grave consequences. Accordingly, in this case, grave consequences mean harm unrelated to the infliction of material damage.

In cases where different parts of the same article of the Special Part of the Criminal Code specify both “large-scale damage” and “grave consequences” as qualifying elements, but the element of “particularly large-scale damage” is absent, the amount of large-scale damage is determined on the basis of the relevant provision contained in subparagraph 38) of Article 3 of the Criminal Code. At the same time, the upper limit of large-scale damage is capped at an amount two thousand times exceeding the MCI. Damage exceeding this amount is qualified as the infliction of grave consequences.

For example, part 1 of Article 292 of the Criminal Code, “Violation of Fire Safety Requirements,” specifies the element of large-scale damage, whereas part 2 specifies grave consequences. Under this article, large-scale damage is recognized as damage caused to an individual in an amount exceeding five hundred MCI, or to an organization or the state in an amount exceeding one thousand but not more than two thousand MCI. Damage exceeding two thousand monthly calculation indices should be regarded as grave consequences.

Since the adoption of the Criminal Code, the commented paragraph of Article 3 of the Criminal Code has been amended more than any other:

By the Law of the Republic of Kazakhstan dated November 24, 2015, “On Amendments and Additions to Certain Legislative Acts of the Republic of Kazakhstan on Matters Concerning Non-Performing Loans and Assets of Second-Tier Banks, the Provision of Financial Services and the Activities of Financial Organizations and the National Bank of the Republic of Kazakhstan”;

By the Law of the Republic of Kazakhstan dated July 3, 2017, “On Amendments and Additions to Certain Legislative Acts of the Republic of Kazakhstan on Matters Concerning the Improvement of the Law Enforcement System” (increase in the threshold values of tax arrears — humanization in the sphere of economic and entrepreneurial activity);

By the Law of the Republic of Kazakhstan dated December 26, 2017, “On Amendments and Additions to Certain Legislative Acts of the Republic of Kazakhstan on Matters Concerning Customs Regulation” (alongside the concept of “customs duties,” related homogeneous concepts in the field of customs regulation began to be applied: “customs fees, taxes, special, anti-dumping and countervailing duties”).

By the Law of the Republic of Kazakhstan dated July 12, 2018, “On Amendments and Additions to Certain Legislative Acts of the Republic of Kazakhstan on Matters Concerning the Improvement of Criminal and Criminal Procedure Legislation and the Activities of Law Enforcement and Special State Bodies,” the threshold values of large-scale damage and large amounts for the majority of the elements of criminal offenses provided for in subparagraph 38) of Article 3 of the Criminal Code were increased by two or more times. Thus, the increase by two or more times in the threshold values of particularly large-scale damage and particularly large amounts was обусловлено by the need to adjust the threshold values following the twofold increase in the threshold values of significant and particularly large-scale damage and amounts (subparagraphs 2), 3) of Article 3 of the Criminal Code), according to the chain reaction principle. Another factor that necessitated the said adjustment was the need to bring the provisions of criminal law into line with the realities of practice. The excessive rigidity of the previously established threshold values became apparent, which hindered the effective regulation of criminal legal relations.

By the Law of the Republic of Kazakhstan dated December 28, 2018, “On Amendments and Additions to Certain Legislative Acts of the Republic of Kazakhstan on Matters Concerning the Circulation of Medicinal Products and Medical Devices,” an amendment aimed at adjusting medical terminology was introduced. This adjustment was largely обусловлено by the requirements of legislative drafting technique (concise, correct and uniform use of terms and concepts).

By the Law of the Republic of Kazakhstan dated January 21, 2019, “On Amendments and Additions to Certain Legislative Acts of the Republic of Kazakhstan on Matters Concerning Strengthening the Protection of Property Rights, Arbitration, Optimization of the Judicial Workload and Further Humanization of Criminal Legislation,” editorial adjustments were made to certain provisions of subparagraphs 3), 38) of Article 3 of the Criminal Code, and the threshold values of significant and large-scale damage and amounts in the elements of criminal offenses in the budgetary and financial sectors of the economy (Articles 235, 244, 245 of the Criminal Code) were also increased. These amendments are primarily related to the easing of the legal regulation of business and the reduction of administrative pressure on entrepreneurship (within the framework of stimulating the activities of small and medium-sized businesses).

By the Law of the Republic of Kazakhstan dated October 28, 2019, “On Amendments and Additions to Certain Legislative Acts of the Republic of Kazakhstan on Matters Concerning the Regulation of the Agro-Industrial Complex,” the concept of large-scale damage and amount was supplemented with indicators of large-scale damage resulting from the illegal handling of rare and endangered, as well as prohibited-for-use species of plants or animals, their parts or derivatives (Article 339 of the Criminal Code). This addition is related to the inclusion, among the qualifying elements of the criminal offense provided for in Article 339 of the Criminal Code, of socially dangerous consequences in the form of the infliction of large-scale damage.

By the Law of the Republic of Kazakhstan dated December 27, 2019, “On Amendments and Additions to Certain Legislative Acts of the Republic of Kazakhstan on Matters Concerning the Improvement of Rehabilitation and Bankruptcy Procedures, Budgetary, Tax Legislation and Railway Transport Legislation,” Article 240 of the Criminal Code, which established liability for fictitious bankruptcy, was excluded from the list of provisions providing for socially dangerous consequences in the form of the infliction of large-scale damage. This was обусловлено by the exclusion of Article 240 from the Criminal Code of the Republic of Kazakhstan.

39. Extremist crimes — acts provided for by Articles 174, 179, 180, 181, 182, 184, 258, 259, 260, 267, 404 (parts two and three) and 405 of this Code.

In accordance with subparagraph 1) of Article 1 of the Law of the Republic of Kazakhstan dated February 18, 2005, “On Counteracting Extremism,” extremism means the organization and (or) commission of:

actions by an individual and (or) legal entity, or an association of individuals and (or) legal entities, on behalf of organizations recognized as extremist in accordance with the established procedure;

actions by an individual or legal entity, or an association of individuals and (or) legal entities, pursuing the following extremist objectives:

violent change of the constitutional order, violation of the sovereignty of the Republic of Kazakhstan, the integrity, inviolability and inalienability of its territory, undermining the national security and defense capability of the state, violent seizure of power or violent retention of power, establishment, management and participation in an illegal paramilitary formation, organization of an armed mutiny and participation therein, incitement of social and class discord (political extremism);

incitement of racial, national and tribal discord, including discord associated with violence or calls for violence (national extremism);

incitement of religious hostility or discord, including that associated with violence or calls for violence, as well as the application of any religious practice that poses a threat to the security, life, health, morality or rights and freedoms of citizens (religious extremism).

The above definition provides a criminological characterization of extremism.

In the Criminal Code, the criminal law category of extremist crimes is defined by listing specific elements of crimes. This legislative drafting technique is обусловлено by the rational presentation of the provisions of criminal law.

According to 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,” a person who has reached the age of fourteen by the time the crime is committed may be the subject of extremist crimes provided for in Articles 174, 184 (parts 1 and 2), and 258 of the Criminal Code.

Criminal liability for committing other types of extremist-oriented crimes arises from the age of sixteen.

The current legislation provides for a number of provisions aimed at tightening liability for extremist crimes. In particular:

the list of extremist crimes has been expanded; in particular, such acts as the creation and management of an extremist group and participation in its activities (Article 182 of the Criminal Code), separatist activities (Article 180 of the Criminal Code), and undergoing terrorist or extremist training (Article 260 of the Criminal Code) have been criminalized;

liability has been established for the use of a mercenary and his personal participation in any violent actions aimed at overthrowing or undermining the constitutional order or violating the territorial integrity of a state (under the Criminal Code of the Republic of Kazakhstan of 1997, liability for mercenarism arose only in the context of an armed conflict or military operations);

a prohibition has been established on conditional sentencing, exemption from criminal liability in connection with active repentance, reconciliation, establishment of a surety, expiration of limitation periods, granting a deferment of serving a sentence, and application of an amnesty act;

parole for extremist crimes, with the exception of particularly grave crimes and crimes involving the death of people, may be applied only in the event of active assistance in preventing, detecting or investigating terrorist or extremist crimes, and exposing members of a terrorist or extremist group;

parole and replacement of the unserved part of a sentence with a milder type of punishment shall not apply to persons convicted of extremist crimes that resulted in the death of people or were associated with the commission of a particularly grave crime;

a definition of an extremist group has been provided as an organized group pursuing the objective of committing one or several extremist crimes.

40. extremist group — an organized group pursuing the objective of committing one or several extremist crimes

An extremist group is a type of organized group whose members have previously united to commit one or several extremist crimes. Like an organized group, an extremist group is characterized by such features and characteristics as stability, consistency of membership, close interconnection between members, coordination of their actions, permanence of the forms and methods of criminal activity, and duration of its existence.

In accordance with paragraph 21 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,” an extremist group is an organized group pursuing the objective of committing one or several extremist crimes.

The creation of an extremist group (part 1 of Article 182 of the Criminal Code) is considered a completed crime from the moment the group is actually formed, that is, from the moment several persons unite into a group.

Management of a group consists in exercising management functions in relation to the group as well as its individual participants for the purpose of ensuring the group's activities. Management of a group may be expressed, in particular, in approving plans for extremist activities, distributing criminal responsibilities within the group, directing group members when committing individual acts of extremism, as well as performing other actions aimed at achieving specific objectives (for example, organizing logistical support and taking security measures in respect of group members).

Criminal liability under part 2 of Article 182 of the Criminal Code for participation in an extremist group arises in cases where the members of that group are aware of its illegality and their membership in it and act to achieve extremist objectives.

Participation in the activities of a group should be understood as joining the group (for example, taking an oath, membership in an organization engaged in extremist activities, carrying out assignments and instructions of the group leader). A criminal offense in the form of a person's participation in a group is considered completed from the moment the person joins the group with the intention of participating in extremist activities or in the preparation or commission of one or several criminal offenses of an extremist nature.

41. electronic carrier — a tangible medium intended for storing information in electronic form, as well as for recording or reproducing it using technical devices

The legislative definition of the concept of “electronic carrier” underwent changes in accordance with the Law of the Republic of Kazakhstan dated November 24, 2015, “On Amendments and Additions to Certain Legislative Acts of the Republic of Kazakhstan on Matters Concerning Informatization.” The definition was improved from the standpoint of law enforcement: adjustments and additions were introduced, giving the terms a clearer, more specific and correct meaning, and the element of evaluative judgment (arbitrary subjective interpretation) was reduced.

The commented legislative definition of the concept of “electronic carrier” corresponds to the definition established in Interstate Standard GOST 2.051-2006 “Unified System for Design Documentation” “Electronic Documents.”

An information carrier is an object of the material world specially adapted by a person for recording and storing information, from which this information can be extracted and reproduced.

Information carriers are divided into electronic, paper and other tangible information carriers.

An electronic carrier differs in that information can be recorded on it and reproduced from it only with the help of devices specially adapted for this purpose, including electronic computers and other computer equipment. Electronic carriers are otherwise referred to as machine-readable carriers. Without the assistance of this class of devices, information, as a rule, cannot be reproduced by a person. For example, a person usually does not need to use any devices to read information from a paper carrier; on the contrary, a person cannot read information from an optical or magnetic carrier without their assistance.

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Currently, magnetic, optical and semiconductor carriers belonging to the class of electronic carriers have been developed and are widely used. These include, for example, hard disk drives (HDDs), magnetic cards, CD/DVD/Blu-ray discs, flash drives and others. With the development of scientific and technological progress, some types of electronic carriers are being replaced by new types. This is what happened in the 1970s with punched tapes and punched cards; at present, magnetic tapes and floppy magnetic disks, which replaced them, are practically no longer used. Despite this trend, the very concept of an electronic carrier is formulated in a universal form and cannot become obsolete, regardless of any innovations in scientific and technological progress.

Computer information is information recorded on a machine-readable or magnetic carrier, represented in the form of a set of states of computer elements or other electronic means of processing, storing and transmitting information. Computer information may be an original or a copy. An original is the first recording in chronological order on a machine-readable carrier; a copy is a later recording, authentic in content and copied from the original. Amendments to the original may be made only by the person or organization that created the document; amendments to a copy are made on the basis of a notice of amendments.

Computer information may have typical and optional properties which, from a forensic perspective, may be used to identify a file and the information contained therein, which is of great importance in the investigation of computer crimes.

Typical properties include:

file name (including its location on the disk — the “path”);

file size;

time of creation and modification;

system attributes (“system,” “read-only” and others);

type of information stored in the file (text, graphic and so on);

machine carrier, its type, number, label and others.

Optional properties include:

software tools used to create or modify the file (use of special symbols, highlights, marks in the program code or document, references to the version, serial number of the software product, registered user of the software product and other information);

the author who created or modified the file (the program as a whole);

the group of files (software tools, groups of documents) into which the file is included (as a separate document or part of program code);

keywords, notes made by the author or editor and the like.

The above properties, when reflected in the records of investigative actions, will make it possible to certify the relevance, admissibility and reliability of the information obtained when it is subsequently used as evidence in the investigation of criminal cases.

A computer printout is a document on a paper carrier, created using computer technology in written form and formalized in accordance with the established procedure. On computer printouts containing particularly important information, the signature is certified by the seal of the organization that created the document.

A tangible carrier is a generic name for a material on which data can be recorded. Carriers are divided into machine-readable carriers — suitable for direct recording and reading of data by technical means (computers), such as magnetic and optical disks, diskettes and the like; and human-readable (hard-copy) carriers — suitable or used for recording data that can be directly read by a person, such as paper, photographic, film, sound recordings and other documents.

An electronic document (machine-readable document) is a set of data formalized in accordance with the established procedure and presented in the form of a set of states of elements of electronic computing equipment and other electronic means of processing, storing and transmitting information, recorded on a machine-readable carrier, intended to be perceived by a person with the help of appropriate software and hardware and having document identification attributes.

An electronic document may be considered a full-fledged document and be involved in the sphere of criminal proceedings as physical evidence or another document. It must:

be created, processed, stored, transmitted and received using software and technical means;

contain details that make it possible to confirm its authenticity and integrity;

be displayed (reproduced) in a form understandable for human perception.

An electronic document may combine several files sent together. Each file included in an electronic document may have one or several electronic signatures, and not necessarily those of the sender. This type of electronic document must include a registry file containing a list of the files included in the document. The registry specifies, for each file, its name and information on whether it is signed or not. An appendix to such an electronic document shall be a protocol containing an indication of the person to whom it is intended and, possibly, certain additional service information. Any electronic document or computer information may be encrypted.

A document is a tangible carrier on which information about facts, events, phenomena of objective reality and human mental activity that is relevant to the case is recorded by means of conventional signs (letters, numbers and others), including information reflecting the course and results of the activities of participants in criminal proceedings, with details enabling its identification.

Procedural documents are factual data obtained during investigative and judicial actions, formalized and certified by the bodies conducting the criminal process in accordance with the procedure established by the Criminal Procedure Code of the Republic of Kazakhstan, and having legal significance under the current legislation.

Other documents are various documents produced both in the course of procedural activities and outside them, but used in the proceedings as sources of evidence: materials of pre-investigation checks; official and private documents obtained, requested or submitted in accordance with the procedure provided for in Article 125 of the Criminal Procedure Code.

Official documents are documents and electronic documents created by an individual or legal entity, formalized and certified in accordance with the established procedure, and having legal significance under the current legislation. Official documents originating from or issued by organizations, enterprises and institutions of any legal nature are characterized by the presence of requisite details. Such details include the document letterhead, its form, color, size, presence of security features, impressions of seals and stamps, photographs and signatures of officials.

Private documents are documents created by an individual that are not subject to any mandatory standard or requirements regarding details (private notes, personal letters and others).

42. Crimes against the sexual inviolability of minors — acts provided for by Articles 120 (rape), 121 (violent acts of a sexual nature), 122 (sexual intercourse or other acts of a sexual nature with a person under the age of 16), 123 (coercion into sexual intercourse, sodomy, lesbianism or other acts of a sexual nature), 124 (sexual molestation of young children), 134 (involvement of a minor in prostitution), 144 (involvement of minors in the production of erotic materials), and parts two and three of Article 312 (production and circulation of materials or items containing pornographic images of minors or involving them in entertainment events of a pornographic nature) of this Code, committed against young children and minors.

Under criminal legislation, crimes against the sexual inviolability of minors are recognized only as the elements included in the list contained in paragraph 42) of Article 3 of the Criminal Code. It should be noted that, by the Law of December 2020, “On Amendments and Additions to Certain Legislative Acts of the Republic of Kazakhstan on the Issue of Implementing Certain Provisions of the Address of the Head of State to the People of Kazakhstan dated September 1, 2020, ‘Kazakhstan in a New Reality: Time for Action,’” the acts provided for in Articles 134, “Involvement of a Minor in Prostitution,” 144, “Involvement of Minors in the Production of Erotic Materials,” and parts 2 and 3 of Article 312, “Production and Circulation of Materials or Items Containing Pornographic Images of Minors or Involving Them in Entertainment Events of a Pornographic Nature,” were classified as crimes against the sexual inviolability of minors.

Commentary from 2021 on the Criminal Code of the Republic of Kazakhstan 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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