Commentary on Article 330 of the Criminal Code of the Republic of Kazakhstan. Intentional Illegal Crossing of the Protected State Border of the Republic of Kazakhstan

1. Intentional illegal crossing of the protected State Border of the Republic of Kazakhstan without the prescribed documents and proper authorization —shall be punishable by a fine in the amount of two hundred to five hundred monthly calculation indices, or in the amount of the salary or other income of the convicted person for a period of two to five months, or by imprisonment for a term of up to two years.

2. The same act committed by a group of persons pursuant to a prior conspiracy or by an organized group, or involving the use of violence or the threat of its use, —shall be punishable by imprisonment for a term of up to five years.The inviolability of state borders is one of the most important attributes of state sovereignty. 

Every person may cross the State Border only after obtaining the appropriate authorization and in accordance with the rules established by the competent authorities of the Republic of Kazakhstan. Violation of this procedure, where the elements specified by law are present, entails criminal liability under Article 330 of the Criminal Code of the Republic of Kazakhstan.According to Article 1 of the Law of the Republic of Kazakhstan “On the State Border of the Republic of Kazakhstan” dated January 13, 1993 (as subsequently amended and supplemented), the State Border of the Republic of Kazakhstan is a line and a vertical plane passing along that line which define the limits of the territory of Kazakhstan, namely its land, waters, subsoil and airspace. 

The State Border is determined by international treaties of the Republic of Kazakhstan ratified by the Parliament of the Republic of Kazakhstan.The regime for the protection of the State Border of the Republic of Kazakhstan includes the rules governing the maintenance of the State Border, its crossing by persons and vehicles, the movement of goods and animals, and the passage of persons, vehicles, goods and animals.

The object of the crime under consideration is the State Border regime establishing the procedure for its crossing by individuals.The objective element consists in the intentional illegal crossing of the State Border of the Republic of Kazakhstan without the prescribed documents and proper authorization.The procedure for crossing the State Border of the Republic of Kazakhstan by individuals and legal entities is regulated by the Law of the Republic of Kazakhstan “On the State Border of the Republic of Kazakhstan” and the Law “On Migration of the Population”, the Decree of the President of the Republic of Kazakhstan having the force of law “On the Legal Status of Foreign Citizens in the Republic of Kazakhstan”, as well as international treaties.The passage of citizens and vehicles is carried out at special checkpoints, which means a territory within the boundaries of a railway station, railway terminal, sea or river vessel, airport or airfield open to international traffic, as well as another specially equipped place where border and customs control is carried out. Crossing the State Border of the Republic of Kazakhstan at other locations is prohibited. An exception is made for cases where a free visa-free border-crossing procedure is currently in force between CIS countries.The basis for passage across the State Border is the possession of valid documents granting the right to enter and leave the country. 

These include a passport of a citizen of the Republic of Kazakhstan; a diplomatic passport issued by the Ministry of Foreign Affairs to citizens of the Republic of Kazakhstan who enjoy diplomatic immunity, as well as to their family members.Upon entering the Republic of Kazakhstan, foreign citizens and stateless persons are required to present valid documents certifying their identity, as well as valid identity documents recognized as such by the Republic of Kazakhstan, and a visa issued by the relevant diplomatic mission or consular office outside the Republic of Kazakhstan.

Crossing the State Border of the Republic of Kazakhstan without the prescribed documents or with documents that the passport control and other control authorities recognize as unlawful constitutes the elements of the crime under consideration.In accordance with Article 10 of the Law of the Republic of Kazakhstan “On the State Border”, there are a number of circumstances in which a forced crossing of the border does not fall within the scope of the commented article: during natural disasters, catastrophes and accidents, when piloting vessels through ice, as well as when providing assistance to people, vessels and aircraft that are in danger or in distress.In my opinion, foreign citizens and stateless persons who arrive in the Republic of Kazakhstan in violation of the rules for crossing the State Border for the purpose of exercising their right to political asylum cannot be held criminally liable under Article 339 of the Criminal Code if their actions do not contain the elements of another crime.

For citizens of Kazakhstan, the right to leave the territory of their country may be restricted in the following cases: when they have been granted access to information of special importance or top-secret information classified as state secrets; when a citizen has been called up for military service in accordance with the procedure established by law, detained on suspicion of committing a crime or charged as an accused; convicted of a crime and evading the fulfillment of an obligation imposed by a court; or has failed to fulfill obligations to pay taxes stipulated by the legislation of the Republic of Kazakhstan.

The crime shall be deemed completed from the moment the State Border line of the Republic of Kazakhstan is crossed without the prescribed documents or proper authorization.The subjective element is expressed in the form of direct intent. The person is aware that they are illegally crossing the State Border of the Republic of Kazakhstan without the prescribed documents or proper authorization and desires to do so. 

The motive and purpose are taken into account by the court when imposing the sentence.The subject of the crime is a general subject — a sane individual who has reached the age of 16, whether a citizen of the Republic of Kazakhstan, a foreign citizen or a stateless person.Part 2 of Article 330 of the Criminal Code of the Republic of Kazakhstan provides for liability for the same act committed by a group of persons pursuant to a prior conspiracy or by an organized group, or involving the use of violence or the threat of its use.

A crime shall be recognized as having been committed by a group of persons pursuant to a prior conspiracy if persons who had agreed in advance to commit the crime jointly participated in it.A crime shall be recognized as having been committed by an organized group if it was committed by a stable group of persons who had united in advance for the purpose of committing one or more crimes.The element of the use of violence covers all types of violence, except for the infliction of grievous bodily harm. 

In the event of intentional infliction of grievous bodily harm or intentional murder, the act shall be classified under the aggregate of crimes provided for in Part 2 of Article 330, Articles 96 and 104 of the Criminal Code of the Republic of Kazakhstan. 

If the victim is a representative of the authorities (an employee of the Border Service of the National Security Committee, customs authorities or other bodies exercising special control powers when crossing the State Border), the act shall be classified under Part 2 of Article 321 and Part 2 of Article 330 of the Criminal Code.Commentary dated 2007 to the Criminal Code of the Republic of Kazakhstan by I. Sh. Borchashvili, Honored Worker of Kazakhstan, Doctor of Law, Professor, Academician of the Kazakhstan National Academy of Natural Sciences.

Date of amendment of the act: 02.08.2007Date of adoption of the act: 02.08.2007Place of adoption: NONEBody that adopted the act: 180000000000Territorial scope of application: 100000000000Registration number of the regulatory legal act assigned by the rule-making body: 167Status of the act: newScope of legal relations: 028000000000Form of the act: COMMENTARYLegal force: 1900Language of the act: Russian 

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