Commentary on Article 35. Conducting Operational-Search Activities or Covert Investigative Actions of the Criminal Code of the Republic of Kazakhstan

1. An act that causes harm to interests protected by this Code shall not constitute a criminal offense if it is committed, in accordance with the law of the Republic of Kazakhstan, during the conduct of operational-search activities, counterintelligence activities or covert investigative actions by an employee of an authorized state body or, on the instructions of such a body, by another person cooperating with that body, provided that such act is committed for the purpose of preventing, detecting, solving or investigating criminal offenses committed by a group of persons, a group of persons by prior conspiracy, or a criminal group; preventing, exposing and suppressing intelligence and (or) subversive operations; and provided that the harm caused to legally protected interests is less significant than the harm caused by the aforementioned criminal offenses, and that their prevention, detection or investigation, as well as the exposure of persons guilty of committing criminal offenses, could not have been achieved by any other means.

2. The provisions of Part One of this Article shall not apply to persons who have committed acts involving a threat to human life or health, an environmental catastrophe, a public disaster or other grave consequences.

The inclusion of this provision as a separate article of the Criminal Code is обусловлено the need to provide clear (direct) guarantees to operational-search personnel in combating organized forms of crime.

For the effective application of criminal legislation, it is necessary to establish the conditions under which the above-mentioned circumstance excluding the criminal unlawfulness of an act may be considered lawful.

Based on the content of the Article, this circumstance excluding the criminal unlawfulness of an act is associated with the conduct of operational-search activities, counterintelligence activities or covert investigative actions.

Pursuant to subparagraph 15) of Article 1 of the Law of the Republic of Kazakhstan dated September 15, 1994, “On Operational-Search Activities”: “Operational-search activities are a scientifically substantiated system of overt and covert operational-search, organizational and managerial measures carried out, in accordance with the Constitution of the Republic of Kazakhstan, this Law and other regulatory legal acts of the Republic of Kazakhstan, by bodies conducting operational-search activities for the purpose of protecting the life, health, rights, freedoms and legitimate interests of individuals and citizens, property, and ensuring the security of society and the State against criminal encroachments.”

Operational-search measures are actions taken by bodies conducting operational-search activities within the limits of their competence and aimed at resolving the tasks provided for in Article 2 of the Law on Operational-Search Activities.

According to Article 11 of the said Law, operational-search measures are divided into general and special measures.

A special operational-search measure is an operational-search measure that directly affects the privacy protected by law, the confidentiality of correspondence, telephone conversations, telegraph messages and postal items, as well as the right to the inviolability of the home (subparagraph 3) of Article 1 of the Law on Operational-Search Activities).

A general operational-search measure is a set of actions by bodies conducting operational-search activities, united by a common tactical and strategic plan and aimed at resolving the tasks of such activities (subparagraph 11) of Article 1 of the Law on Operational-Search Activities).

The conduct of operational-search measures, as well as the use of information obtained in the course of their conduct, for the achievement of goals and objectives not provided for by the Law on Operational-Search Activities shall not be permitted.

The law classifies the following actions as operational-search measures: the introduction of an employee of a body conducting operational-search activities, or a confidential assistant cooperating with such a body, into the environment of an operational-interest target for the purpose of resolving the tasks of operational-search activities; the use of a behavioral model imitating criminal activity; the establishment of covert enterprises and organizations; the use of special technical means; covert monitoring, interception and extraction of information transmitted through electrical (telecommunication) communication networks; covert acquisition of information about connections between subscribers and (or) subscriber devices; covert extraction of information from computers, servers and other devices intended for the collection, processing, accumulation and storage of information; interception of telephone and other conversations; surveillance, including through the use of special technical means (audio and video communication, cinematography, photography and other technical means); covert monitoring of postal and other items; covert entry into and (or) inspection of premises, and others.

General and special operational-search measures are carried out by all bodies conducting operational-search activities, in accordance with the tasks assigned to them.

As stated in Part 1 of Article 35 of the Criminal Code, operational-search measures may be carried out only by two groups of persons:

employees of an authorized state body;

other persons cooperating with such bodies, and only on the instructions of such a body.

Pursuant to Article 6 of the Law of the Republic of Kazakhstan on Operational-Search Activities, the bodies authorized to conduct operational-search activities include:

internal affairs bodies;

national security bodies;

the authorized body in the field of foreign intelligence;

military intelligence bodies of the Ministry of Defense;

the Anti-Corruption Service;

the State Security Service of the Republic of Kazakhstan;

the Economic Investigation Service.

The list of bodies conducting operational-search activities may be amended or supplemented only by law.

The second group of persons authorized to conduct operational-search measures consists of other persons cooperating with the aforementioned state bodies. This category of persons conducting operational-search measures includes any individuals who have attained the age of eighteen, are legally capable and have consented to cooperate on a confidential basis (including under a contract) with a body conducting operational-search activities, as well as persons who previously cooperated with such a body voluntarily. They must act only on the instructions of employees authorized to conduct operational-search measures and cooperate with them on the grounds prescribed by law.

By the Law of the Republic of Kazakhstan dated December 28, 2016, “On Amendments and Additions to Certain Legislative Acts of the Republic of Kazakhstan on Counterintelligence Activities,” the commented Article 35 of the Criminal Code was supplemented with a reference to counterintelligence activities alongside operational-search activities and covert investigative actions. Thus, the provisions of Article 35 of the Criminal Code apply equally to cases in which harm is caused to interests protected by the Criminal Code of the Republic of Kazakhstan during the lawful conduct of counterintelligence activities.

Pursuant to subparagraph 20) of Article 1 of the Law of the Republic of Kazakhstan dated December 28, 2016, “On Counterintelligence Activities”: “Counterintelligence activities are a system of counterintelligence and organizational measures carried out by special state bodies of the Republic of Kazakhstan to protect the national interests of the Republic of Kazakhstan against intelligence and subversive activities.”

Intelligence and subversive activities are intelligence and (or) subversive operations carried out by the special services of foreign states, other foreign organizations, as well as individuals (subparagraph 10) of Article 1 of the Law).

An intelligence operation is the acquisition and collection of information to the detriment of the national security of the Republic of Kazakhstan (subparagraph 8) of Article 1 of the Law).

A counterintelligence measure is an overt or covert action aimed at preventing, exposing and suppressing intelligence and (or) subversive operations (subparagraph 24) of Article 1 of the Law).

A subversive operation is an influence on public relations to the detriment of the national security of the Republic of Kazakhstan (subparagraph 27) of Article 1 of the Law).

Counterintelligence measures are, in fact, identical to operational-search measures (Article 11 of the Law).

The conduct of counterintelligence activities, as well as the use of information obtained in the course thereof, for the purpose of resolving tasks not provided for by the Law of the Republic of Kazakhstan “On Counterintelligence Activities” shall not be permitted. Furthermore, actions that humiliate the honor and dignity of individuals and citizens shall not be permitted in the course of counterintelligence activities.

The grounds for conducting counterintelligence measures are specified in Article 10 of the Law of the Republic of Kazakhstan “On Counterintelligence Activities.”

The bodies conducting counterintelligence activities include the special state bodies of the Republic of Kazakhstan: the national security bodies; the State Security Service of the Republic of Kazakhstan; and the authorized body in the field of foreign intelligence.

In connection with the introduction of the new institution of covert investigative actions into the Criminal Procedure Code of the Republic of Kazakhstan, the provisions of the commented Article also apply equally to cases in which harm is caused to interests protected by the Criminal Code of the Republic of Kazakhstan during the lawful conduct of covert investigative actions.

Pursuant to subparagraph 12) of Article 7 of the Criminal Procedure Code, a covert investigative action is an action conducted in the course of pre-trial proceedings without prior notification of the persons whose interests it concerns, in the manner and in the cases provided for by the Criminal Procedure Code. Covert investigative actions are regulated by Chapter 30 of the Criminal Procedure Code.

In accordance with Part 2 of Article 232 of the Criminal Procedure Code, covert investigative actions, with the exception of covert monitoring of postal and other items, are conducted, upon the instruction of the pre-trial investigation body, by an authorized unit of a law enforcement or special state body using the forms and methods of operational-search activities. A covert investigative action in the form of covert monitoring of postal and other items, pursuant to Article 246 of the Criminal Procedure Code, is carried out by employees of postal institutions or other organizations providing delivery services, with the participation of an investigator and (or) an inquiry officer.

Thus, the range of persons authorized to conduct covert investigative actions includes an investigator, an inquiry officer (including persons authorized to conduct operational-search activities), as well as other persons in accordance with criminal procedure legislation and legislation on operational-search and counterintelligence activities.

In accordance with Article 35 of the Criminal Code, the first condition for the lawfulness of conducting operational-search activities, counterintelligence activities or covert investigative actions is the determination of the range of persons entitled to conduct such measures.

As stated in Article 35 of the Criminal Code, operational-search activities, counterintelligence measures or covert investigative actions must be carried out solely for the purpose of preventing, detecting, solving or investigating criminal offenses, and preventing, exposing and suppressing intelligence and (or) subversive operations. Therefore, if a person performs such actions for another purpose, such conduct shall not be recognized as a circumstance excluding the criminal unlawfulness of the act.

Consequently, the second condition for the lawfulness of conducting operational-search activities, counterintelligence measures or covert investigative actions is the purpose of conducting such measures, namely the prevention, detection, solving or investigation of criminal offenses.

The conduct of operational-search activities, counterintelligence measures and covert investigative actions shall be recognized as a circumstance excluding the criminal unlawfulness of an act only if such measures are carried out in relation to criminal offenses committed in various forms of complicity provided for in Article 31 of the Criminal Code: by a group of persons, a group of persons by prior conspiracy, or a criminal group, as well as for the purpose of preventing, exposing and suppressing intelligence and (or) subversive operations. Thus, criminal legislation permits the conduct of operational-search activities, counterintelligence measures and covert investigative actions (Article 35 of the Criminal Code) only in cases involving the commission of criminal offenses by groups of persons and the prevention, exposure and suppression of intelligence and (or) subversive operations. It follows from the content of Article 35 of the Criminal Code that the conduct of operational-search measures as a circumstance excluding the criminal unlawfulness of an act is impossible in cases involving individual unlawful activity, except where such measures are carried out in the course of counterintelligence activities aimed at preventing, exposing and suppressing intelligence and (or) subversive operations. In this case, it should be assumed that such measures are also permitted in cases of individual criminal activity. This provision should be recognized as the third condition for the lawfulness of conducting operational-search measures.

As stated in Article 35 of the Criminal Code, harm caused during operational-search activities, counterintelligence measures and covert investigative actions is inflicted upon interests protected by law. This provision indicates that interests not protected by current legislation do not fall within the scope of criminal law. Thus, when carrying out these actions, harm is caused only to legally protected interests. This characteristic constitutes the fourth condition for the lawfulness of conducting operational-search measures.

Article 35 of the Criminal Code recognizes the conduct of operational-search activities, counterintelligence measures and covert investigative actions as a circumstance excluding the criminal unlawfulness of an act only where the harm caused by the actions of the person conducting operational-search activities, counterintelligence measures or covert investigative actions is less significant than the harm caused by group criminal offenses. Thus, this provision may be recognized as the fifth condition for the lawfulness of conducting operational-search activities, counterintelligence measures and covert investigative actions. Therefore, if a person causes harm equal to or greater than the harm caused by the group criminal offenses being prevented, the actions of such person cannot be recognized as a circumstance excluding the criminal unlawfulness of the act.

For the conduct of operational-search activities, counterintelligence measures or covert investigative actions to be recognized as a circumstance excluding the criminal unlawfulness of an act, it is necessary that the prevention, detection, solving or investigation of group criminal offenses, and the prevention, exposure and suppression of intelligence and (or) subversive operations, could not have been achieved by any other means. Thus, the legislator recognizes that the conduct of operational-search activities, counterintelligence measures or covert investigative actions is the only means of achieving the intended objective. If other means of achieving the intended objective existed and the person did not use them, the actions of such person cannot be recognized as a circumstance excluding the criminal unlawfulness of the act. This provision should be recognized as yet another condition for the lawfulness of conducting operational-search activities, counterintelligence measures and covert investigative actions.

Part 2 of Article 35 of the Criminal Code states that a person's actions shall not be recognized as a circumstance excluding the criminal unlawfulness of an act if they involve a threat to human life or health, an environmental catastrophe, a public disaster or other grave consequences. This requirement may also be recognized as a condition for the lawfulness of conducting operational-search activities, counterintelligence measures and covert investigative actions.

Thus, taking the above into account, all the conditions for the lawfulness of conducting operational-search activities, counterintelligence measures and covert investigative actions may be divided into two groups:

Conditions of lawfulness relating to the operational-search measure, counterintelligence measure or covert investigative action itself.

Conditions of lawfulness relating to the harm caused in the course of operational-search activities, counterintelligence measures and covert investigative actions.

The first group of conditions of lawfulness includes:

a restricted range of persons entitled to conduct operational-search activities, counterintelligence measures or covert investigative actions;

the purpose of conducting operational-search activities, counterintelligence measures and covert investigative actions — the prevention, detection, solving or investigation of criminal offenses, and the prevention, exposure and suppression of intelligence and (or) subversive operations;

operational-search activities, counterintelligence measures and covert investigative actions are carried out only in cases involving the commission of criminal offenses by groups of persons.

The second group of conditions of lawfulness includes:

harm caused during operational-search activities, counterintelligence measures and covert investigative actions is inflicted only upon legally protected interests;

causing harm is the only means of achieving the intended objective;

the harm caused by the actions of the person conducting operational-search activities, counterintelligence measures and covert investigative actions must be less significant than the harm caused by the group criminal offense;

the harm caused during operational-search activities, counterintelligence measures or covert investigative actions must not involve a threat to human life or health, an environmental catastrophe, a public disaster or other grave consequences.

The conduct of operational-search activities, counterintelligence measures or covert investigative actions should be distinguished from extreme necessity.

Unlike the source of danger in the course of operational-search activities, counterintelligence measures and covert investigative actions, the source of a violation of the legitimate interests of citizens, society and the State that creates a situation of extreme necessity may consist not only of human actions but also of natural forces, animal attacks, physiological processes, mechanical malfunctions, a conflict between two duties, and other circumstances. In the course of operational-search activities, counterintelligence measures and covert investigative actions, the source of danger is criminally unlawful activity carried out by a group of persons, a group of persons by prior conspiracy or a criminal group, as well as intelligence and (or) subversive operations.

The actions of persons in a state of extreme necessity are performed for the purpose of eliminating a danger that directly threatens the life, health, rights and legitimate interests of the person in a state of extreme necessity, as well as those of other persons, and the interests of society or the State. Actions taken in the course of operational-search activities, counterintelligence measures and covert investigative actions are aimed at carrying them out in accordance with the law for the purpose of preventing, detecting, solving or investigating criminal offenses committed by a group of persons, a group of persons by prior conspiracy or a criminal group, and preventing, exposing and suppressing intelligence and (or) subversive operations.

The actions of persons in a state of extreme necessity may take place only at the moment of an immediately impending danger, that is, the danger must be present and directly threaten legally protected interests. Therefore, neither a danger that has already passed nor a future danger gives rise to a state of extreme necessity. The actions of persons conducting operational-search activities, counterintelligence measures or covert investigative actions may take place before a criminal offense is committed, at the time of its commission, as well as after its commission, during the stages of preventing, detecting, solving or investigating criminal offenses, and during the stages of preventing, exposing and suppressing intelligence and (or) subversive operations. This is due to the fact that even if harm has already been caused to legally protected interests, the danger does not cease until the person who committed the criminal offense has been brought to criminal liability and subjected to punishment.

Any person may be the subject of extreme necessity, since the performance of an act under extreme necessity is a subjective right of a citizen. The range of persons vested with the right to conduct operational-search activities, counterintelligence measures and covert investigative actions is strictly defined by law.

A substantial difference lies in the object of the encroachment. The legislator has not specified the list of objects that may be harmed in a state of extreme necessity. Harm may be caused to the property interests of individuals, organizations or the State, as well as to the health and even the lives of citizens, whereas, in the course of operational-search activities, counterintelligence measures and covert investigative actions, the commission of actions involving a threat to human life or health, an environmental catastrophe, a public disaster or other grave consequences is regarded as a criminal offense.

The conduct of operational-search activities, counterintelligence measures or covert investigative actions as a circumstance excluding the criminal unlawfulness of an act should be distinguished from the detention of a person who has committed an encroachment.

The range of persons involved in conducting operational-search activities, counterintelligence measures or covert investigative actions is much narrower than the range of persons entitled to detain a person who has committed an encroachment. These are employees of an authorized state body or, on the instructions of such a body, other persons cooperating with that body. The right to detain a person who has committed an encroachment belongs not only to persons specially authorized to do so, but also to victims and other citizens.

Detention under Article 33 of the Criminal Code is carried out in respect of a person who has committed any criminal offense. Operational-search activities, counterintelligence measures and covert investigative actions are carried out in respect of persons committing or having committed a criminal offense in one of the forms of complicity, as well as for the purpose of preventing, exposing and suppressing intelligence and (or) subversive operations.

Under Article 33 of the Criminal Code, the only object that may be harmed during detention is the person who has committed the criminal offense.

Harm may be caused to the property interests, health and even the life of the person being detained. In the course of operational-search activities, counterintelligence measures or covert investigative actions, harm may lawfully be caused to objects protected by criminal law only if this does not involve a threat to human life or health, an environmental catastrophe, a public disaster or other grave consequences.

Detention takes place after the commission of a criminal offense, whereas operational-search activities, counterintelligence measures and covert investigative actions are carried out both before and after the commission of a criminal offense. Covert investigative actions are also conducted after a person has committed a criminal offense, within the framework of pre-trial investigation.

Exceeding the conditions of lawfulness in the course of operational-search activities, counterintelligence measures or covert investigative actions consists in causing harm equal to, or greater than, the harm being prevented. Exceeding the conditions of lawfulness in the detention of a person who has committed an encroachment is recognized as an obvious discrepancy between the measures taken and the nature and degree of public danger of the criminal offense committed by the person being detained and the circumstances of the detention, where clearly excessive harm, not necessitated by the situation, is caused without necessity. According to Article 33 of the Criminal Code, such excess entails criminal liability only in cases of intentional infliction of harm. Explaining the meaning of the above, it may be concluded that the infliction of equal harm is permissible if the circumstances of the detention so required.

In the course of operational-search activities, counterintelligence measures or covert investigative actions, harm may lawfully be caused to objects protected by criminal law only if this does not involve a threat to human life or health, an environmental catastrophe, a public disaster or other grave consequences.

Detention takes place after the commission of a criminal offense, whereas operational-search activities, counterintelligence measures and covert investigative actions are carried out both before and after the commission of a criminal offense. Covert investigative actions are also conducted after a person has committed a criminal offense, within the framework of pre-trial investigation.

Exceeding the conditions of lawfulness in the course of operational-search activities, counterintelligence measures or covert investigative actions consists in causing harm equal to, or greater than, the harm being prevented. Exceeding the conditions of lawfulness in the detention of a person who has committed an encroachment is recognized as an obvious discrepancy between the measures taken and the nature and degree of public danger of the criminal offense committed by the person being detained and the circumstances of the detention, where clearly excessive harm, not necessitated by the situation, is caused without necessity. According to Article 33 of the Criminal Code, such excess entails criminal liability only in cases of intentional infliction of harm. Explaining the meaning of the above, it may be concluded that the infliction of equal harm is permissible if the circumstances of the detention so required.

Commentary of 2021 to 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.

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