Commentary on Article 380-1. Encroachment on the Life of an Employee of a Law Enforcement Body, a Special State Body, a Military Serviceman, a State Inspector for the Protection of Wildlife, an Inspector of a Specialized Wildlife Protection Organization, or a Gamekeeper of the Criminal Code of the Republic of Kazakhstan

1. Encroachment on the life, that is, intentional actions aimed at causing death, of an employee of a law enforcement body, a special state body, a military serviceman, a state inspector for the protection of wildlife, an inspector of a specialized wildlife protection organization, a gamekeeper, or their close relatives, in connection with the performance of their official duties or out of revenge for the performance of their official duties —

shall be punishable by deprivation of liberty for a term of ten to fifteen years, with or without confiscation of property.

2. The same act, committed:

1) against two or more persons;

2) against a person who is knowingly in a helpless condition, as well as when associated with kidnapping or hostage-taking;

3) against a woman who is knowingly known to the perpetrator to be pregnant;

4) with particular cruelty;

5) by a method dangerous to the lives of other people;

6) by a group of persons, a group of persons acting upon prior conspiracy, or a criminal group;

7) for the purpose of concealing another crime or facilitating its commission, as well as when associated with rape or violent acts of a sexual nature;

8) repeatedly;

9) against a person who is knowingly a minor;

10) in an area where a state of emergency has been declared or in the zone of an anti-terrorist operation, —

shall be punishable by deprivation of liberty for a term of fifteen to twenty years or life imprisonment, with confiscation of property.

The public danger of the crime provided for in Article 380-1 of the Criminal Code lies in the fact that this act obstructs the lawful activities of public authorities represented by employees of law enforcement bodies and special state bodies, military servicemen, state inspectors for the protection of wildlife, inspectors of specialized wildlife protection organizations, and gamekeepers, frequently making the performance of their official duties impossible, undermines the authority of state power, leads to the disorganization of administrative relations, and creates an atmosphere of insecurity and fear caused by the above-mentioned employees' concerns for their own lives, as well as for the lives and health of their close relatives.

The high degree of public danger of the crime under consideration lies in the fact that the normal activities of state bodies are disrupted through an encroachment directly upon the person of an employee of a law enforcement body or a special state body, a military serviceman, a state inspector for the protection of wildlife, an inspector of a specialized wildlife protection organization, a gamekeeper, or their close relatives; consequently, it infringes upon two significant objects of the crime — the normal activities of representatives of authority and their lives.

The object of the crime commented on herein is the social relations ensuring the activities of administrative bodies and employees of law enforcement bodies and special state bodies, military servicemen, state inspectors for the protection of wildlife, inspectors of specialized wildlife protection organizations, and gamekeepers. The additional object is the social relations guaranteeing the protection of the lives of the above-mentioned employees and their close relatives.

The victims of the crime provided for in Article 380-1 of the Criminal Code are employees of law enforcement bodies and special state bodies; military servicemen; state inspectors for the protection of wildlife; inspectors of specialized wildlife protection organizations; gamekeepers and their close relatives.

According to subparagraph 9) of Article 1 of the Law of the Republic of Kazakhstan dated January 6, 2011, “On Law Enforcement Service,” an employee of a law enforcement body is a citizen of the Republic of Kazakhstan from among the employees of law enforcement bodies who has been assigned a special rank or class rank or has been awarded a qualification class.

According to subparagraph 5) of Article 1 of the Law of the Republic of Kazakhstan dated February 13, 2012, “On Special State Bodies of the Republic of Kazakhstan,” an employee of a special state body is a citizen of the Republic of Kazakhstan serving in the national security bodies, the authorized body in the field of foreign intelligence, or the State Security Service of the Republic of Kazakhstan, who has been assigned a special rank.

In accordance with subparagraph 20) of Article 1 of the Law of the Republic of Kazakhstan dated February 16, 2012, “On Military Service and the Status of Military Servants,” military servicemen are citizens of the Republic of Kazakhstan performing military service in the Armed Forces, other troops and military formations.

According to the Law of the Republic of Kazakhstan dated July 9, 2004, “On the Protection, Reproduction and Use of Wildlife,” state inspectors for the protection of wildlife and inspectors of specialized wildlife protection organizations are officials exercising state control and supervision in the field of the protection, reproduction and use of wildlife.

A gamekeeper, according to subparagraph 64) of Article 1 of the above-mentioned Law, is a specially authorized person of the gamekeeping service who protects wildlife in assigned hunting grounds and fishery water bodies and/or areas.

Within the framework of the article under consideration, close relatives shall mean close family members who, in accordance with subparagraph 13) of paragraph 1 of Article 1 of the Code of the Republic of Kazakhstan “On Marriage (Matrimony) and Family,” as well as subparagraph 11) of Article 7 of the Criminal Procedure Code, include parents (a parent), children, adoptive parents, adopted children, full and half brothers and sisters, grandfathers, grandmothers and grandchildren.

The objective elements of the crime provided for in Article 380-1 of the Criminal Code consist in an encroachment on the life, that is, intentional actions aimed at causing death, of an employee of a law enforcement body or a special state body, a military serviceman, a state inspector for the protection of wildlife, an inspector of a specialized wildlife protection organization, a gamekeeper, or their close relatives, in connection with the performance of their official duties or out of revenge for the performance of their official duties.

An encroachment constitutes an act in the form of active actions aimed at depriving them of their lives.

The objective elements of the act under consideration may be characterized by two components: an encroachment in the form of an attempted murder and an encroachment in the form of murder.

In the case of an encroachment in the form of murder, the victim's death must occur; in the case of an encroachment in the form of an attempted murder, death is not required to occur. However, in both cases, the criminal offense shall be deemed completed.

The use, when committing an encroachment on the life of persons specified in Part 1 of Article 380-1 of the Criminal Code, of illegally manufactured weapons, as well as illegally acquired or illegally circulated weapons, ammunition, explosives and explosive devices, shall be qualified cumulatively as an encroachment on the life of these persons (Article 380-1 of the Criminal Code), illegal acquisition, transfer, sale, storage, transportation or carrying of weapons, ammunition, explosives and explosive devices (Article 287 of the Criminal Code), and illegal manufacture of weapons (Article 288 of the Criminal Code).

It should be noted that the term “in connection with the performance of official duties,” used in the disposition of Part 1 of Article 380-1 of the Criminal Code, is broader than the concept of “while performing official duties.”

The expression “in connection with the performance of duties” means that the motive for the encroachment on life is also connected with the past activities of employees of law enforcement bodies and special state bodies, military servicemen, state inspectors for the protection of wildlife, inspectors of specialized wildlife protection organizations, and gamekeepers (hostility towards them in general). Consequently, the expression “in connection with the performance of duties” encompasses both an encroachment on life while they are performing their official duties and an encroachment committed when they are not performing those duties. That is, the crime under consideration may also be committed when the above-mentioned persons are not directly performing their official duties, provided that the encroachment on their lives is committed in connection with the performance of those duties. The lapse of time between the performance of their official duties and the encroachment on their lives or the lives of their close relatives does not affect the legal classification in this case. In such circumstances, it is important to establish the connection between the criminal conduct and the activities of the above-mentioned persons.

If the act is committed outside the circumstances specified above, that is, it is not connected with the performance by these persons of their official duties, criminal liability shall arise under the relevant articles of Chapter 1, “Criminal Offenses Against the Person.”

Revenge is the commission of harmful acts motivated by the desire to punish someone for harm previously inflicted upon the individual, that is, retribution for something.

Thus, the motive of revenge, in principle, presupposes an act of retaliation, of inflicting harm in response to harm previously caused to a person. In this particular case, however, the victim's conduct constitutes wrongdoing exclusively from the perpetrator's point of view, since the reason for revenge is the lawful conduct of these persons.

Accordingly, the actions of the perpetrator shall be qualified under Part 1 of Article 380-1 of the Criminal Code only if the perpetrator takes revenge on the victim exclusively for the victim's lawful actions arising from the performance of official duties. If the encroachment on life is committed out of revenge for the victim's unlawful actions, the person shall be held criminally liable in accordance with Article 99 of the Criminal Code.

Liability for the crime under consideration arises not only in the event of an encroachment on the lives of these persons themselves, but also on the lives of their close relatives.

The actual occurrence of death as a result of an encroachment on the life of an employee of a law enforcement body or a special state body, a military serviceman, a state inspector for the protection of wildlife, an inspector of a specialized wildlife protection organization, a gamekeeper, or their close relatives, in connection with the performance of their official duties, is covered by the elements of this criminal offense and does not require additional qualification as murder under Article 99 of the Criminal Code. Taking into account the exceptional dangerousness of the perpetrator, the legislator has moved the point at which the crime provided for in Article 380-1 of the Criminal Code is deemed completed to the stage of attempted commission. Thus, the crime commented on herein shall be deemed completed from the moment of the encroachment on the lives of the above-mentioned persons, regardless of whether death occurs.

The subjective elements of the crime commented on herein are characterized by direct intent. The perpetrator realizes that they are encroaching upon the life of an employee of a law enforcement body or a special state body, a military serviceman, a state inspector for the protection of wildlife, an inspector of a specialized wildlife protection organization, a gamekeeper, or their close relatives in connection with the performance of their official duties, foresees the possibility of socially dangerous consequences in the form of death, and desires the death of these persons.

A mandatory element of the subjective side of the analyzed corpus delicti is a special motive — the performance by the victims of their official duties or revenge against the victims for the performance of their official duties.

Where the encroachment is committed for other motives, the act shall be qualified under Article 99 of the Criminal Code.

The subject of the crime provided for in Article 380-1 of the Criminal Code may be any sane person who has attained the age of 16.

Part 2 of Article 380-1 of the Criminal Code provides for qualifying circumstances of an encroachment on the life of an employee of a law enforcement body or a special state body, a military serviceman, a state inspector for the protection of wildlife, an inspector of a specialized wildlife protection organization, a gamekeeper, or their close relatives, in connection with the performance of their official duties or out of revenge for the performance of their official duties:

against two or more persons;

against a person who is knowingly in a helpless condition, as well as when associated with kidnapping or hostage-taking;

against a woman who is knowingly known to the perpetrator to be pregnant;

with particular cruelty;

by a method dangerous to the lives of other people;

by a group of persons, a group of persons acting upon prior conspiracy, or a criminal group;

for the purpose of concealing another crime or facilitating its commission, as well as when associated with rape or violent acts of a sexual nature;

repeatedly;

against a person who is knowingly a minor;

in an area where a state of emergency has been declared or in the zone of an anti-terrorist operation.

A detailed analysis of the qualifying circumstances provided for in subparagraphs 1), 2), 4), 6), 8), 9), and 10) of Part 2 of Article 380-1 of the Criminal Code is given in the commentary to Article 380 of the Criminal Code.

Subparagraph 3) of Part 2 of Article 380-1 of the Criminal Code provides for an encroachment on the life of a woman who is knowingly known to the perpetrator to be pregnant as a qualifying circumstance.

Liability for an encroachment on the life of a woman who is knowingly known to the perpetrator to be pregnant is increased because this act represents an increased degree of public danger, given that the perpetrator encroaches not only upon the life of the woman but also upon her fetus — the embryo of a future human life.

When qualifying an encroachment on life under subparagraph 3) of Part 2 of Article 380-1 of the Criminal Code, it is necessary to establish that, at the time of the encroachment, the perpetrator knowingly knew that the victim was pregnant. At the same time, the duration of the pregnancy, whether the victim was registered with the relevant medical institution in connection with her pregnancy, the viability of the fetus, and so forth are irrelevant for qualification. Whether or not the fetus dies as a result of the encroachment on the life of the pregnant woman is also of no legal significance for qualification under this subparagraph. The perpetrator may become aware of the pregnancy from the victim's appearance, from her own statement, or as a result of reviewing medical documents.

A person who did not know that the victim was pregnant cannot be held criminally liable under this subparagraph.

In cases where the perpetrator encroaches on the life of a woman (an employee of a law enforcement body), mistakenly believing that the victim is pregnant, the act shall be qualified as an encroachment on the life of a woman who is knowingly known to the perpetrator to be pregnant (subparagraph 3) of Part 2 of Article 380-1 of the Criminal Code).

Subparagraph 5) of Part 2 of Article 380-1 of the Criminal Code provides for an encroachment on the life of an employee of a law enforcement body or a special state body, a military serviceman, a state inspector for the protection of wildlife, an inspector of a specialized wildlife protection organization, a gamekeeper, or their close relatives, in connection with the performance of their official duties or out of revenge for the performance of their official duties, by a method dangerous to the lives of other people, as a qualifying circumstance.

In order to qualify the act under consideration as having been committed by a method dangerous to the lives of other people, it is necessary to establish that the perpetrator, while carrying out an encroachment on the life of a particular person or persons, realized that they were using a method that posed a real danger to the lives and health of numerous other people (at least two).

Consequently, the method of encroachment on life itself is important — namely, a method dangerous to the public. In most cases, the use of such a method of encroachment on life (by arson, explosion, firing automatic weapons in bursts into a crowd, flooding, causing an accident involving a vehicle occupied by several people, and so forth) is dangerous to the lives of many citizens.

This type of encroachment on life should also include encroachments committed with the use of various automatic devices that create a threat to the life of any person who may come into contact with such devices. The mere use, in the course of an encroachment on the life of one person in an unpopulated place, of means and instruments capable of causing the deaths of several persons cannot, in itself, indicate the presence of the qualifying circumstance under consideration. At the same time, when qualifying an act under subparagraph 5) of Part 2 of Article 380-1 of the Criminal Code, the number of persons who actually suffered as a result of the method of encroachment on the life of the victim selected by the perpetrator is irrelevant, provided that the perpetrator intended to encroach upon the life of that victim. The actual encroachment on the life of only one person does not exclude the application of subparagraph 5) of Part 2 of Article 380-1 of the Criminal Code if the method of encroachment on life itself was dangerous to the lives of several persons. In this regard, the danger to the lives of other persons must be real, not imaginary, must actually exist, and must not be merely presumed.

In this type of encroachment on life, the perpetrator acts with direct intent to encroach upon the life of a particular person. The perpetrator's attitude towards causing the death of or harm to the health of other persons is expressed in the form of indirect intent. If an encroachment on the life of one person by a method dangerous to the lives of other people results in the deaths of several persons, the perpetrator's actions shall be qualified under subparagraphs 1) and 6) of Part 2 of Article 380-1 of the Criminal Code.

Where, during an encroachment on life by a method dangerous to the lives of many people, death is caused to a person other than the person whom the perpetrator intended to kill, the act shall be qualified under subparagraph 5) of Part 2 of Article 380-1 of the Criminal Code.

Subparagraph 7) of Part 2 of Article 380-1 of the Criminal Code provides for an especially qualifying circumstance: an encroachment on the life of an employee of a law enforcement body or a special state body, a military serviceman, a state inspector for the protection of wildlife, an inspector of a specialized wildlife protection organization, a gamekeeper, or their close relatives, for the purpose of concealing another crime or facilitating its commission, as well as when associated with rape or violent acts of a sexual nature.

When committing this crime, the perpetrator pursues the objective of completely concealing a previously committed crime or circumstances affecting its legal classification and the measure of punishment. When encroaching on the life of an employee of a law enforcement body or a special state body, a military serviceman, a state inspector for the protection of wildlife, an inspector of a specialized wildlife protection organization, a gamekeeper, or their close relatives for the purpose of facilitating the commission of another crime, the perpetrator may commit this act either before the planned crime is committed or during its commission.

For the purpose of qualifying the perpetrator's actions under subparagraph 7) of Part 2 of Article 380-1 of the Criminal Code, it is not necessary for the perpetrator to achieve the intended objective as a result of the encroachment on life — namely, to conceal another crime or facilitate its commission. At the same time, it is irrelevant whether the crime being concealed was committed against the employee of a law enforcement body or a special state body, the military serviceman, the state inspector for the protection of wildlife, the inspector of a specialized wildlife protection organization, the gamekeeper, or their close relatives, or against other persons, and whether it falls within the category of intentional, serious, or negligent crimes.

Accordingly, the motive for committing the act under consideration is the desire, by encroaching on the lives of the specified category of persons, to facilitate the commission of a new crime or conceal a previously committed crime by the perpetrator or another person, which is known to these persons or their close relatives. At the same time, the act being analyzed may occur not only where the relevant authorities have not yet been notified of the crime, or where a report of the crime has been received but the perpetrator was unaware of this, but also in cases where a report of the crime has been received by the relevant authorities, those authorities know the identity of the person who committed the crime, and the perpetrator is aware of this.

An encroachment on life associated with rape or violent acts of a sexual nature should be understood as the intentional causing of the death of the victim, committed during an attempt to commit the specified crimes or in the course of their commission.

Where the victim is killed during rape or the commission of violent acts of a sexual nature, during an attempt to commit the specified crimes, or after the completion of a violent sexual act or violent acts of a sexual nature, for the purpose of concealing what has been done or out of revenge for the resistance offered, the perpetrator's actions shall be qualified cumulatively under the relevant criminal provisions (subparagraph 7) of Part 2 of Article 380-1 of the Criminal Code and the relevant Articles 120 or 121 of the Criminal Code).

The crime provided for in Article 380-1 of the Criminal Code should be distinguished from the crime provided for in Article 177 of the Criminal Code, “Encroachment on the Life of the First President of the Republic of Kazakhstan — Elbasy.”

Unlike the crime provided for in Article 380-1 of the Criminal Code, the object of which is the social relations ensuring the activities of administrative bodies and employees of law enforcement bodies and special state bodies, military servicemen, state inspectors for the protection of wildlife, inspectors of specialized wildlife protection organizations, and gamekeepers, the object of the crime provided for in Article 177 of the Criminal Code is the social relations ensuring the legitimacy of state power of the Republic of Kazakhstan as the basis for its existence and functioning, as well as the social relations ensuring the unhindered performance of the functions of the First President of the Republic of Kazakhstan — Elbasy.

The victims of the crime provided for in Article 380-1 of the Criminal Code are employees of law enforcement bodies and special state bodies; military servicemen; state inspectors for the protection of wildlife; inspectors of specialized wildlife protection organizations; gamekeepers and their close relatives, whereas the only victim of the crime provided for in Article 177 of the Criminal Code is the First President of the Republic of Kazakhstan — Elbasy.

There are also differences in the subject of the crime. In the commission of the crime provided for in Article 380-1 of the Criminal Code, a sane natural person who has attained the age of 16 by the time of committing the crime is subject to criminal liability, whereas in the commission of the crime provided for in Article 177 of the Criminal Code, a sane natural person who has attained the age of 14 by the time of committing the crime is subject to criminal liability.

The crime provided for in Article 380-1 of the Criminal Code should also be distinguished from the crime provided for in Article 178 of the Criminal Code, “Encroachment on the Life of the President of the Republic of Kazakhstan.”

Differences can be identified in the object and subject of the above-mentioned crimes. Thus, unlike the crime provided for in Article 380-1 of the Criminal Code, the object of the crime provided for in Article 178 of the Criminal Code is the social relations ensuring the legitimacy of state power of the Republic of Kazakhstan as the basis for its existence and functioning, as well as the social relations ensuring the unhindered performance of the functions of the President of the Republic of Kazakhstan.

In this case, the only victim of the crime provided for in Article 178 of the Criminal Code is the President of the Republic of Kazakhstan.

There are also differences in the subject of the crime. In the commission of the crime provided for in Article 178 of the Criminal Code, a sane natural person who has attained the age of 14 by the time of committing the crime is subject to criminal liability.

It should be noted that a mandatory element of the subjective side of the corpus delicti provided for in Article 178 of the Criminal Code is a special purpose — the termination of the state activities of the President of the Republic of Kazakhstan.

The act provided for in Article 380-1 of the Criminal Code should also be distinguished from the crime provided for in Part 4 of Article 255 of the Criminal Code, “Act of Terrorism.”

Differences can be identified in the object and subject of the above-mentioned crimes. Thus, unlike the crime provided for in Article 380-1 of the Criminal Code, the object of an act of terrorism is the social relations guaranteeing public security, as well as the protection of citizens' lives.

The victims of the crime provided for in Part 4 of Article 255 of the Criminal Code are citizens, as well as state or public figures and persons or organizations enjoying international protection.

There are also differences in the subjective side. Whereas the purpose of the crime provided for in Article 380-1 of the Criminal Code is the performance by the victims of their official duties or revenge against the victims for the performance of their official duties, the purpose of the crime provided for in Part 4 of Article 255 of the Criminal Code is to disrupt public security, intimidate the population, influence decision-making by state bodies of the Republic of Kazakhstan, a foreign state or an international organization, provoke war or complicate international relations, as well as terminate the state or other political activities of a state or public figure or take revenge for such activities.

Differences are also identified in the subject of the acts under consideration. Thus, criminal liability for the crime provided for in Part 4 of Article 255 of the Criminal Code arises from the age of 14.

The crime provided for in Article 380-1 of the Criminal Code should be distinguished from the crime provided for in Article 408 of the Criminal Code, “Encroachment on the Life of a Person Administering Justice or Conducting Pre-Trial Investigation.”

The differences lie in the object and objective elements of the crime.

Unlike the crime provided for in Article 380-1 of the Criminal Code, the object of the crime provided for in Article 408 of the Criminal Code is the social relations ensuring the normal activities of the court in the administration of justice and the activities of bodies conducting pre-trial investigations. The additional object is the life of a person administering justice or conducting a pre-trial investigation, as well as the lives of their close relatives.

The victims under Article 380-1 of the Criminal Code are employees of law enforcement bodies and special state bodies; military servicemen; state inspectors for the protection of wildlife; inspectors of specialized wildlife protection organizations; gamekeepers and their close relatives. The victims under Article 408 of the Criminal Code are a judge, a juror, a prosecutor, a defense counsel, an expert, a court bailiff, an enforcement officer, as well as their close relatives.

The difference in the objective elements of the above-mentioned criminal offenses lies in the act itself. The objective elements of the crime provided for in Article 380-1 of the Criminal Code consist in an encroachment on life, that is, intentional actions aimed at causing death, whereas the objective elements of the crime provided for in Article 408 of the Criminal Code consist in an encroachment on the life of a judge, a juror, a prosecutor, a person conducting a pre-trial investigation, a defense counsel, an expert, a court bailiff, an enforcement officer, or their close relatives, in connection with the consideration of cases or materials in court, the conduct of a pre-trial investigation, or the execution of a sentence, court decision or other judicial act, committed for the purpose of obstructing the lawful activities of the specified persons or out of revenge for such activities.

The crime provided for in Article 380-1 of the Criminal Code should also be distinguished from the crime provided for in Part 4 of Article 429 of the Criminal Code, “Threat of Violence Against an Employee of an Institution Ensuring Isolation from Society or Their Close Relatives, as Well as Against a Convicted Person, or Encroachment on Their Health or Life.”

Differences can be identified in the object and subject of the above-mentioned crimes. Thus, unlike the crime provided for in Article 380-1 of the Criminal Code, the object of the crime provided for in Part 4 of Article 429 of the Criminal Code is the social relations guaranteeing public order in the sphere of activities of institutions ensuring isolation from society, as well as the social relations guaranteeing the protection of the life of an employee of such an institution or their spouse or close relatives and convicted persons.

The victims under Part 4 of Article 429 of the Criminal Code are employees of an institution ensuring isolation from society, or their spouses or close relatives, as well as convicted persons.

The acts provided for in Parts 1 and 2 of Article 380-1 of the Criminal Code belong to the category of especially grave crimes.

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.

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