Commentary on Article 31. Criminal Liability for Criminal Offences Committed by a Group under the Criminal Code of the Republic of Kazakhstan

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A criminal offence shall be deemed to have been committed by a group of persons if two or more perpetrators jointly participated in its commission without prior agreement.

A criminal offence shall be deemed to have been committed by a group of persons acting upon prior agreement if persons who had previously agreed to commit the criminal offence jointly participated in its commission.

A crime shall be deemed to have been committed by a criminal group if it was committed by an organized group, a criminal organization, a criminal community, a transnational organized group, a transnational criminal organization, a transnational criminal community, a terrorist group, an extremist group, a gang, or an illegal paramilitary formation.

A person who has established a criminal group or led it shall be subject to criminal liability for organizing the criminal group and leading it in cases provided for by the relevant articles of the Special Part of this Code, as well as for all crimes committed by the criminal group, provided that such crimes were covered by that person's intent.

Other members of a criminal group shall bear criminal liability for participation in it in cases provided for by the relevant articles of the Special Part of this Code, as well as for crimes in the preparation or commission of which they participated.

The issue of forms of complicity has both practical and theoretical significance. The precise definition of forms of complicity is necessary for correctly understanding its nature, determining the character of the crime committed by an accomplice, and establishing the grounds and limits of their criminal liability.

The current criminal legislation does not contain the term "form of complicity".

In Article 31 of the Criminal Code of the Republic of Kazakhstan, the legislator uses the presence or absence of a prior agreement between accomplices as the criterion for dividing complicity in a criminal offence into different forms. The Article provides for three forms of complicity: a) a group of persons; b) a group of persons acting upon prior agreement; c) a criminal group.

At the same time, criminal offences in the form of crimes and criminal misdemeanours may be committed only within the first two forms of complicity, namely, by a group of persons or by a group of persons acting upon prior agreement. Only crimes are committed within a criminal group (as follows from the very term itself). If members of a criminal group commit criminal misdemeanours in addition to crimes, liability for such misdemeanours arises on general grounds and individually for each person who participated in their commission. The fact that members of a criminal group have committed a criminal misdemeanour has no criminal-law significance.

In accordance with Part 1 of Article 31 of the Criminal Code, a criminal offence shall be deemed to have been committed by a group of persons if two or more perpetrators jointly participated in its commission without prior agreement. In the theory of criminal law, this form of complicity has acquired several names: a simple form of complicity, co-perpetration, and joint criminal participation. Each of these terms reflects a particular characteristic that constitutes the essence of this form of complicity. All accomplices within this form of complicity perform at least a separate part of the objective elements of the act that they jointly commit. Thus, when a criminal offence is committed by a group, no prior distribution of roles takes place among the persons involved in the case, and in this sense, such complicity is considered simple.

Most often, such co-perpetration occurs in situations where one person begins committing a criminal offence and another joins that person.

In cases of co-perpetration, persons participating in the commission of a criminal offence must necessarily perform the objective elements of the act (either part of them or their entirety), that is, they must be co-perpetrators in the full sense of the word. The degree of participation of each co-perpetrator in carrying out the objective elements differs, since the criminal offence is committed jointly.

A group of persons as a form of complicity is characterized by the following features:

- the presence of two or more co-perpetrators, that is, the joint performance of the objective elements of the act by two or more persons;

- an almost equal degree of participation of each of them in the commission of the criminal offence;

- the absence of prior agreement, meaning that before committing the criminal offence, the persons concerned had not agreed among themselves to commit the criminal offence jointly.

Part 2 of Article 31 of the Criminal Code establishes that a criminal offence shall be deemed to have been committed by a group of persons acting upon prior agreement if persons who had previously agreed to commit the criminal offence jointly participated in its commission.

A group of persons acting upon prior agreement differs from a simple group of persons by an additional indicator of danger — the existence of a prior agreement. This form of joint commission of a criminal offence is characterized by a particular combination of criteria whereby, in order to achieve a result, participants assume certain roles in creating conditions for the direct infringement of the socially significant interests of the person against whom the criminal offence is committed. The individual characteristics of the form under consideration are also determined by the nature of the participants' mental attitude towards the act committed. They are all generally aware that they are committing one and the same criminal offence. When comparing criminal offences committed in the aforementioned forms of complicity, a clear tendency towards an increase in the danger of a criminal offence committed by a group of persons acting upon prior agreement can be observed. For example, when comparing rape committed by several persons who had agreed in advance and rape committed without prior agreement between the accomplices, it is evident that, all other conditions being equal, the first of these forms of complicity is characterized by a greater degree of social danger. The danger increases because the infringement is carried out through the direct physical and psychological impact exerted on the victim through the combined efforts of several persons. Such an impact practically eliminates the victim's ability to resist and protect her rights. Accordingly, rape committed by a group of persons acting upon prior agreement entails more serious legal consequences and stricter criminal liability.

The legislator uses the concept of "participation" in relation to accomplices and the concept of "commission" in relation to the perpetrator, since, in complicity, only the perpetrator performs the actions constituting the objective elements of the criminal offence committed through complicity. According to Part 2 of Article 31 of the Criminal Code, persons who have previously agreed to commit a criminal offence jointly participate in it. We believe that if the existence of one perpetrator were considered sufficient for a group of persons acting upon prior agreement, the legislative wording would read as follows: "A criminal offence shall be deemed to have been committed by a group of persons acting upon prior agreement if it was committed by persons who had previously agreed to participate in it jointly."

In Part 2 of Article 31 of the Criminal Code, the legislator emphasizes that the guilty persons agree in advance to commit a criminal offence jointly. This means that at least two persons must combine their efforts in order to carry out the objective elements of the criminal offence, that is, in essence, they are perpetrators of the criminal offence.

The Normative Resolution of the Supreme Court of the Republic of Kazakhstan "On Certain Issues of the Application by Courts of Legislation on Liability for Banditry and Other Criminal Offences Committed Through Complicity" states:

"The qualifying features of the commission of a criminal offence by a 'group of persons' or a 'group of persons acting upon prior agreement' may be attributed to the perpetrators in cases where the criminal offence was committed by two or more accomplices to the criminal offence.

When qualifying the actions of the guilty persons on the basis of the feature of committing a criminal offence by a 'group of persons acting upon prior agreement', it is necessary to establish whether an agreement, expressed in any form, existed between two or more persons to commit the criminal offence, and whether these persons reached such an agreement before beginning actions directly aimed at committing the criminal offence, that is, before at least one perpetrator began carrying out the objective elements of the criminal offence.

A criminal offence shall also be qualified on the basis of the feature 'committed by a group of persons acting upon prior agreement' in cases where two or more persons have combined their efforts to commit it, and the actions of each accomplice constitute a necessary condition for the actions of the other accomplices, in accordance with the prior distribution of roles, and are causally connected with the common criminal result arising from the activities of all accomplices. In such cases, the participation of two or more perpetrators in the criminal offence is not mandatory; one perpetrator is sufficient, provided that other types of accomplices are present" (Paragraph 3).

Prior agreement by a group of persons to commit criminal offences should be understood as an agreement between two or more persons to commit a specific criminal offence, reached before they perform actions constituting the objective elements of the criminal offence.

In cases where a criminal offence is committed by certain participants acting upon prior agreement and, before the completion of the objective elements of the offence, other persons join them pursuant to a prior agreement, the actions of both the original participants and those who subsequently joined them should be qualified as the commission of a criminal offence by a group of persons acting upon prior agreement.

The existence of a prior agreement presupposes the distribution of roles. The performance by each accomplice of the role assigned to them in advance determines the achievement of the result sought by all accomplices. The actions of the perpetrator always contain the elements of the criminal offence provided for by a specific article of the Special Part of the Criminal Code.

The commission of a criminal offence by a group of persons or by a group of persons acting upon prior agreement entails a more severe punishment. Therefore, law enforcement authorities must correctly determine the form of complicity and the accomplices to the criminal offence. In accordance with Parts 1 and 2 of Article 31 of the Criminal Code, qualification of a criminal offence and imposition of punishment under an article (or part of an article) of the Special Part of the Criminal Code that provides for commission by a group of persons or by a group of persons acting upon prior agreement as a qualifying feature is possible only in cases where two or more persons jointly participated in the commission of the criminal offence and are recognized as co-perpetrators in accordance with Part 2 of Article 28 of the Criminal Code.

The actions of an organizer, instigator, or aider do not contain the elements of a specific criminal offence, since their participation constitutes only an auxiliary role in the commission by the perpetrator of the criminal offence in question. When qualifying the actions of an organizer, instigator, or aider, in addition to the article of the Special Part of the Criminal Code establishing the punishability of their actions, a reference to the relevant part of Article 28 of the Criminal Code is required.

The features of a group of persons acting upon prior agreement are: 1) participation of two or more persons in it; 2) prior agreement between the accomplices, meaning that before committing the criminal offence they have agreed in advance to commit it jointly.

The basis of this form of complicity is an agreement to engage in joint criminal activity before the commencement of the criminal offence. The prior agreement must take place before the commencement of the performance of the objective elements of the criminal offence. The nature of the agreement itself may vary: it may be comprehensive, covering all aspects of the criminal offence being committed, or it may concern only certain aspects of the planned infringement, the concealment of traces of the criminal offence, and so on. At the same time, it is important to note that the very fact of a prior agreement to commit a criminal offence substantially increases its degree of social danger.

A group of persons acting upon prior agreement differs from organized forms of criminal activity by a lower degree of organization and cohesion.

It should be borne in mind that, in practice, there are certain differences in the understanding of the role of the perpetrator depending on the type of crime. Thus, in qualifying murder or rape, the concept of a perpetrator is interpreted very narrowly. Murder is recognized as having been committed by a group of persons when two or more persons, acting jointly with the intent to commit murder, directly participated in the process of depriving the victim of life by using violence against the victim. It is not necessary for each of them to have inflicted injuries that resulted in death (for example, one person suppressed the victim's resistance and deprived the victim of the ability to defend themselves, while another inflicted the fatal injury). In judicial and investigative practice, these circumstances are not always taken into account, which leads to errors in qualification.

D. and V. were convicted of murder committed by a group of persons and associated with robbery. The convicted D. requested that the judgment be overturned insofar as it concerned her conviction for murder. The Judicial Panel for Criminal Cases of the Supreme Court amended the judgment on the following grounds.

D. had agreed with V. to carry out a robbery against P. During a fight between P. and V., she struck the victim on the head with a bottle in order to suppress his resistance, causing bodily injuries that did not result in harm to his health. Realizing that P. might prevent them from taking possession of the property, V. decided to kill him and suggested that D. make a rope out of a towel. Using the rope that had been made, V. tied P.'s arms and legs and, making a noose, strangled him. The court qualified the actions of D. and V. as murder committed by a group of persons.

At the court hearing, it was established that D. had used violence (striking the victim on the head with a bottle) during the robbery for the purpose of suppressing the victim's resistance, rather than depriving him of his life. The fact that D. made and handed over the rope with which P. was tied up and strangled, as well as her presence while V. was strangling the victim, indicated only her aiding and abetting in the murder. The qualifying feature of murder committed by a "group of persons" was absent from the actions of D. In view of the foregoing, the Judicial Panel qualified D.'s actions under Part 5 of Article 28 and Subparagraph 8) of Part 2 of Article 99 of the Criminal Code, excluding the feature of "commission by a group of persons".

The concept of a perpetrator is interpreted much more broadly in cases involving theft of property. Thus, liability for "theft, robbery, or brigandage committed by a group of persons acting upon prior agreement" also arises in cases where, according to the prior agreement between the accomplices, the actual taking of the property is carried out by only one of them.

If the other participants, in accordance with the distribution of roles, perform coordinated actions aimed at directly assisting the perpetrator in committing the crime (for example, a person does not enter a dwelling but participates in breaking doors, locks, or bars, transports the stolen property in accordance with a prior agreement, or provides cover for the other accomplices against possible detection of the committed crime), their actions constitute co-perpetration and, by virtue of Part 2 of Article 29 of the Criminal Code, do not require additional qualification under Article 28 of the Criminal Code. With regard to murder and rape, such actions may be regarded only as aiding and abetting, even if they were committed pursuant to a prior agreement between the accomplices.

A group of persons acting upon prior agreement exists not only when all co-perpetrators have fully carried out the objective elements of a specific criminal offence, but also in cases where some of them have performed only part of those objective elements. Rape committed by a group of persons acting upon prior agreement includes not only the actions of persons who directly committed the violent sexual act, but also the actions of persons who assisted them by using physical or psychological violence against the victim. In this regard, the actions of persons who did not personally commit the violent sexual act but assisted other persons in committing the crime by using violence should be qualified as co-perpetration in group rape (Part 2 of Article 28 of the Criminal Code). Furthermore, rape should be recognized as having been committed by a group of persons acting upon prior agreement not only in cases where several persons subject one or more victims to sexual violence, but also where the perpetrators, acting in concert and using violence or the threat of violence against several persons, subsequently commit a violent sexual act with each of them or at least one of them.

Not every case in which a person intentionally commits a criminal offence jointly with other persons constitutes complicity. If two persons participated in the commission of a criminal offence and only one of them possesses the characteristics of a criminal-law subject, that is, has reached the age of criminal responsibility established by law for that criminal offence and is legally sane, complicity is not established. As follows from Paragraph 27 of the Normative Resolution of the Supreme Court of the Republic of Kazakhstan "On Judicial Practice in Cases Involving Criminal Offences Committed by Minors and Their Involvement in the Commission of Criminal Offences and Other Antisocial Acts", the actions of an adult who involved a minor in the commission of a criminal offence and participated in its commission shall be qualified under the aggregate of articles of the Criminal Code providing for liability both for committing the specific criminal offence in complicity with the minor and for involving the minor in the commission of criminal offences. At the same time, a criminal offence committed jointly with a person who has not reached the age at which criminal liability arises cannot be qualified as having been committed by a group of persons. In such cases, in accordance with Part 2 of Article 28 of the Criminal Code, the adult who involved the minor in the commission of criminal offences should be recognized as the perpetrator.

The Supreme Court adheres to a similar position in its Normative Resolution of 11 July 2003 "On Judicial Practice in Cases Involving Theft", Paragraph 10 of which states:

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

In such cases, the person recognized as a subject of the criminal offence must be recognized as the perpetrator of the theft, regardless of the form of participation. Furthermore, where grounds exist, their actions must additionally be qualified as involving a minor in criminal activity. In other cases, involving persons in the commission of a criminal offence who are known to the perpetrator to suffer from a severe mental disorder or who have not reached the age at which criminal liability arises shall, in accordance with Subparagraph 5) of Part 1 of Article 54 of the Criminal Code, be recognized as a circumstance aggravating criminal liability and punishment.

Recognition of a person as an accomplice to a criminal offence presupposes that the person is aware of the legally significant characteristics of the criminal offence committed by the perpetrator. Everything attributed to an accomplice must be covered by that accomplice's intent.

The Criminal Code of 2014 fundamentally revised the approach to defining the so-called organized (complex) forms of complicity. More precisely, the form of their definition changed substantially, while their substantive content (essence) underwent only minor adjustments.

Under the previously applicable legislation, there were four organized (complex) forms of complicity: an organized group, a criminal community (criminal organization), a transnational organized group, and a transnational criminal community (transnational criminal organization). Under the Criminal Code of the Republic of Kazakhstan of 2014, there is only one organized (complex) form of complicity — a criminal group. At the same time, the organized (complex) forms of complicity previously known to criminal legislation and listed above were incorporated as separate types into the structure of a single general form of complicity called a "criminal group". It should also be noted that certain types of criminal groups (previously independent forms of complicity) underwent certain changes, for example, the concepts of a criminal community and a criminal organization. A gang, terrorist group, extremist group, and illegal paramilitary formation were identified as independent types of criminal groups (previously, these concepts were encompassed by such forms of complicity as an organized group and a criminal community (criminal organization)).

According to Part 3 of Article 31 of the Criminal Code, a crime shall be deemed to have been committed by a criminal group if it was committed by an organized group, a criminal organization, a criminal community, a transnational organized group, a transnational criminal organization, a transnational criminal community, a terrorist group, an extremist group, a gang, or an illegal paramilitary formation.

Paragraph 6 of the aforementioned Normative Resolution of the Supreme Court of the Republic of Kazakhstan states:

"Under Part 3 of Article 31 of the Criminal Code, a criminal group should be understood to include not only an organized group, a criminal organization, and a 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, an extremist group, a stable armed group (gang), and an illegal paramilitary formation, the establishment of which is punishable under the first parts of Articles 257, 268, and 267 of the Criminal Code. At the same time, a gang differs from a criminal group by its armed nature and the existence of a criminal purpose — carrying out attacks against citizens and organizations."

The concepts of all constituent elements (types) of a criminal group are defined in Article 3 of the Criminal Code.

An organized group is a stable group of two or more persons who have united in advance for the purpose of committing one or more criminal offences (Subparagraph 36) of Article 3 of the Criminal Code). The legislative definition of an organized group identifies three features:

- a numerical composition of at least two persons (that is, two or more);

- stability of the composition of the group;

- prior and purposeful unification (establishment) of the group for the purpose of committing one or more criminal offences.

When defining an organized group, the legislator should have used the term "crime" instead of the term "criminal offence", since a "stable group" of two or more persons would not be established for the purpose of committing criminal misdemeanours. Therefore, despite the fact that the legislator uses the concept of "criminal offence", we will use the concept of "crime" as the one that most accurately corresponds to the definition of an organized group.

In general, it should be noted that the legislator's use of the term "criminal offence" in defining the types of criminal groups is unsuccessful.

With regard to the first of the aforementioned features, it should be taken into account that each of the at least two members of an organized group must possess the characteristics of a subject of the crimes committed or planned to be committed by that organized group. An exception is made for cases provided for in Part 5 of Article 28 of the Criminal Code, where crimes involving a special subject are committed through complicity. In such cases, one of the members of the organized group, namely the perpetrator, must possess the characteristics of the special subject of the crime (for example, in the case of receiving a bribe, the person must be a person authorized to perform state functions or an official). At the same time, at least one other member of the organized group must possess the general characteristics of a subject of a crime (that is, be a sane natural person who has reached the age of criminal responsibility).

However, it should be borne in mind that qualifying features of a criminal offence relating to the identity of the perpetrator may be attributed to other accomplices (the organizer, instigator, and aider) if they were aware that the perpetrator possessed the specified qualifying features and, through their actions, facilitated the commission of criminal offences specifically by that perpetrator.

The feature of stability means the permanence of the composition of the organized group (all its members or the main part of them) and the preservation of criminal connections between the members of the group over an extended period. In practice, the feature of stability is considered to exist when the composition of the members (all or some of them) remains constant during the commission of several (two or more) crimes. At the same time, persons who have recently joined an organized group (even if they are committing a crime as members of that group for the first time) must also be recognized as members of the relevant organized group.

The organization and stability of an organized group may be evidenced, in particular, by such features as the stability of its membership and organizational structures, the cohesion of its members, their subordination to group discipline and the instructions of the organizer and leader, the consistency of the forms and methods of criminal activity, the planning and thorough preparation of a crime, the distribution of roles among accomplices, the development of a criminal plan, the advance provision of measures to conceal crimes and sell property obtained as a result of criminal activity, the duration of the existence of such a formation, and so on.

Where an organized group is established for the commission of a single crime (as a rule, a serious or especially serious crime), the stability of its members is more difficult to establish. In this case, the distribution of roles among the members and the existence of communication and interaction between them at the preparation stage of the crime indicate the stability of the group's composition.

According to Paragraph 11 of the Normative Resolution of the Supreme Court of the Republic of Kazakhstan "On Certain Issues of the Application by Courts of Legislation on Liability for Banditry and Other Criminal Offences Committed Through Complicity":

"The fact that a group of persons acting upon prior agreement has committed a series of crimes over a certain period through coordinated actions and consistent forms and methods of criminal activity is not sufficient grounds for recognizing the existence of a criminal group.

A criminal group differs from a group of persons acting upon prior agreement by a higher degree of organization and stability. Its characteristics may include, in particular: the existence of a leader (or leaders) and the subordination of other members to them, the awareness of 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.

The characteristics of a criminal group must be proven, in accordance with the requirements of Article 113 of the Criminal Procedure Code of the Republic of Kazakhstan, alongside other elements of the composition of the crime."

The feature of prior unification of participants into a group for the purpose of committing one or more crimes means an agreement between all members of the group concerning their intention to jointly commit one or more specific crimes, as well as crimes that have not been specifically defined, in the near or more distant future. The time interval between the unification of persons into an organized group and the actual commission of the planned crimes may vary and may extend to several months or even years. In practice, the fact of prior unification of the members of an organized group is confirmed by the organized performance of preparatory actions by the group members, with the distribution of roles and functions.

The organization of a group is also characterized by the preparation by its members of a plan for committing crimes, the adaptation of means or elimination of possible obstacles to achieving the criminal result, the advance preparation of conditions for concealing and selling stolen property, the concealment of tools, means, and traces of crimes, as well as the concealment of the persons who committed them.

The organizer is the most socially dangerous figure among accomplices, since they exercise both general management of the organized group and direct management of the actions of its members at various stages of the organized group's activities. The functions of an organizer are multifaceted. The organizer keeps records, distributes income from criminal activities, trains and instructs group members, and resolves conflicts. Their principal role, however, is to unite the members of the group and manage criminal activity. It should be noted that cases are known in practice where not one, but several organizers participate in the establishment and subsequent operation of an organized group. Therefore, the role of the group's organizer may be performed by either one person or several persons simultaneously.

Another important feature of an organized group that distinguishes it from another type of criminal group — a "criminal organization" — is its simple organizational structure, which does not provide for any subdivisions. In other words, an organized group consists of a single common unit that performs all functions and implements all plans without distributing functions and responsibilities among separate groups of members of the criminal formation. The distribution of roles and functions within an organized group may take place among individual members without the creation of separate groups of members (structural subdivisions). Otherwise, this would constitute the next, more socially dangerous type of criminal group — a criminal organization.

A criminal organization is an organized group whose members are distributed among organizationally, functionally and/or territorially separate groups (structural subdivisions) (Subparagraph 25) of Article 3 of the Criminal Code). As noted above, a criminal organization differs from an organized group by its complex structure. Thus, the distribution of roles and functions and areas of criminal activity within a criminal organization is carried out on a group basis. In other words, all members are divided into separate groups, each of which consists of several (two or more) persons. Such groups formed within a criminal organization are referred to as structural subdivisions of the criminal organization. At the same time, the legislator identifies an exhaustive list of types of such subdivisions:

- structural subdivisions formed according to the organizational criterion (that is, according to the degree of significance, organizational role (organizers, leaders, perpetrators), and status (criminal authority));

- subdivisions formed according to the functional criterion (that is, according to the roles and profile of the functions performed (a group responsible for providing tools and means, a group searching for potential victims of crimes, an information support group, a group responsible for the use of force, a group responsible for selling property obtained through unlawful means, and so on));

- subdivisions formed according to the territorial principle (for example, the distribution of members of a criminal organization across districts of a city or region or any other territorial units (so-called spheres of influence)).

A criminal community is an association of two or more criminal organizations that have entered into an agreement to jointly commit one or more criminal offences, as well as to create conditions for the independent commission of one or more criminal offences by any of these criminal organizations (Subparagraph 23) of Article 3 of the Criminal Code). Under the previously applicable criminal legislation, the concepts of "criminal community" and "criminal organization" were equivalent. Under the Criminal Code of 2014, a criminal community constitutes a more dangerous type of criminal group and takes two forms. First, in the form of a simple association of several criminal organizations for the purpose of committing one or more crimes (similar to the association of members of an organized group). Second, in the form of an association of several criminal organizations for the purpose of creating conditions for the members of any of these criminal organizations to commit a specific crime or crimes.

A transnational organized group is an organized group pursuing the purpose of committing one or more crimes in the territory of two or more states, or in the territory of one state where the organization of the commission of the act or the management of its execution takes place from the territory of another state, or where citizens of another state participate in it (Subparagraph 35) of Article 3 of the Criminal Code).

A transnational criminal organization is a criminal organization pursuing the purpose of committing one or more crimes in the territory of two or more states, or in the territory of one state where the organization of the commission of the act or the management of its execution takes place from the territory of another state, or where citizens of another state participate in it (Subparagraph 34) of Article 3 of the Criminal Code).

A transnational criminal community is an association of two or more transnational criminal organizations (Subparagraph 33) of Article 3 of the Criminal Code).

Transnational criminal groups differ from their ordinary counterparts in three features:

- multi-territorial commission — the commission of a crime in the territory of two or more states (this may involve either a single crime that was initiated, continued, and completed in the territories of different states, or the commission of several separate crimes in the territories of different states);

- multi-territorial organization and leadership — organization of the commission of an act or management of its execution from the territory of another state;

- citizenship of accomplices — the fact that at least one of the accomplices is a citizen of another state.

A terrorist group is an organized group pursuing the purpose of committing one or more terrorist crimes (Subparagraph 31) of Article 3 of the Criminal Code).

An extremist group is an organized group pursuing the purpose of committing one or more extremist crimes (Subparagraph 40) of Article 3 of the Criminal Code).

A gang is an organized group pursuing the purpose of attacking citizens or organizations with the use or threat of use of weapons or objects used as weapons (Subparagraph 7) of Article 3 of the Criminal Code).

An illegal paramilitary formation is a formation not provided for by the legislation of the Republic of Kazakhstan (an association, detachment, squad, or other group consisting of three or more persons) that has an organizational structure of a paramilitary nature and possesses unified command, combat capability, and strict discipline (Subparagraph 18) of Article 3 of the Criminal Code).

A person who has established a criminal group or led it shall be subject to criminal liability for organizing the criminal group and leading it in cases provided for by the relevant articles of the Special Part of the Criminal Code, as well as for all crimes committed by the criminal group, provided that such crimes were covered by that person's intent (Part 4 of Article 31 of the Criminal Code).

Based on the requirements of Part 4 of Article 31 of the Criminal Code, the actions of a person who established a gang or another criminal group or led it shall be qualified, respectively, under the first parts of Articles 257, 262, 263, 264, 265, 267, and 268 of the Criminal Code, as well as under the relevant articles of the Special Part of the Criminal Code providing for liability for criminal offences committed by the gang or other criminal group, provided that such offences were covered by that person's intent. At the same time, qualification under the relevant article of the Special Part of the Criminal Code is carried out with reference to Article 28 of the Criminal Code, except in cases where the organizer (leader) is simultaneously a co-perpetrator of the criminal offence.

The actions of an organizer or leader of a gang or another criminal group who directly participated in criminal offences committed by the gang or criminal group are not subject to additional qualification under the second parts of Articles 257, 262, 263, 264, 265, 267, and 268 of the Criminal Code.

Other members of a criminal group shall bear criminal liability for participation in it in cases provided for by the relevant articles of the Special Part of the Criminal Code, as well as for crimes in the preparation or commission of which they participated (Part 5 of Article 31 of the Criminal Code).

The aforementioned Normative Resolution of the Supreme Court of the Republic of Kazakhstan dated 21 June 2001 states:

"The actions of members of a gang or another criminal group shall be qualified, respectively, under the second parts of Articles 257, 262, 263, 264, 265, 267, and 268 of the Criminal Code, as well as under the relevant articles of the Special Part of the Criminal Code for criminal offences in the preparation or commission of which they participated (third paragraph of Paragraph 15).

A person who participated in criminal offences committed by a gang or another criminal group shall bear liability under the second parts of Articles 257, 262, 263, 264, 265, 267, and 268 of the Criminal Code, respectively, in cases where that person was aware that they were an accomplice to a criminal offence committed by a gang. If the person was unaware of the existence of the criminal formation, they shall bear liability only for the criminal offence in which they participated" (Paragraph 16).

It should be noted that the qualification of complicity in a criminal group depends on the nature of its regulation in the Special Part of the Criminal Code. In this case, a reference to Part 2 of Article 28 of the Criminal Code is not required.

If an article of the Special Part of the Criminal Code contains an indication of the relevant form of complicity, the act shall be qualified under the paragraph or part of the article in which that indication appears. At the same time, the relevant paragraph of a part and the part of an article may contain either one or several forms of complicity. Thus, intentional murder caused by a group of persons or by a group of persons acting upon prior agreement is qualified under Subparagraph 7) of Part 2 of Article 99 of the Criminal Code.

If an article of the Special Part of the Criminal Code does not contain a qualifying feature reflecting the form of complicity, qualification shall be carried out according to the elements of the basic composition of the crime.

If an article of the Special Part of the Criminal Code does not refer to a particular form of complicity but identifies a less dangerous form as a qualifying feature, then, in the absence of other qualifying features, the act shall be qualified under the paragraph or part of the article specifying that less dangerous form.

If an article of the Special Part of the Criminal Code does not contain an indication of a particular form of complicity in a criminal group but provides for a more dangerous form, then, in the absence of other qualifying features, the act shall be qualified according to the elements of the basic composition of the crime.

Thus, Article 236 of the Criminal Code provides, as a particularly qualifying feature, evasion of payment of customs duties, customs fees, taxes, special, anti-dumping, and countervailing duties committed by a criminal group (Part 3). If a criminal offence is committed, for example, by a group of persons acting upon prior agreement, the act shall be qualified under Part 1 or Part 2 of Article 236 of the Criminal Code.

Finally, Paragraph 16 of the Normative Resolution of the Supreme Court of the Republic of Kazakhstan dated 20 April 2018 "On the Judicial Judgment" states:

"One of the conditions for rendering a lawful judgment is the conformity of its descriptive and reasoning part with the evidence examined at the court hearing. When preparing this part, the court is required to comply with the requirements of Article 397 of the Criminal Procedure Code.

The descriptive part of the judgment must contain a description of the criminal act recognized by the court as proven, indicating the place, time, method of its commission, form of guilt, motives, and consequences of the criminal offence. This description must be clear and concise. If a criminal offence was committed by a group of persons acting upon prior agreement or by an organized criminal group, the specific criminal actions committed by each defendant must be described..."

Commentary from 2021 on the Criminal Code of the Republic of Kazakhstan by Isidor Shamilovich Borchashvili, Honoured Figure of Kazakhstan, Doctor of Law, Professor, Academician of the National Academy of Natural Sciences of Kazakhstan, member of the Scientific Advisory Councils under the Constitutional Council of the Republic of Kazakhstan and the Supreme Court of the Republic of Kazakhstan, member of the working group on reform of the law enforcement system under the Security Council of the Republic of Kazakhstan, Honoured Worker of the Ministry of Internal Affairs of the Republic of Kazakhstan.

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