Commentary on Article 380-2. Use of Violence Against a State Inspector for the Protection of Wildlife, an Inspector of a Specialized Wildlife Protection Organization, or a Game Warden of the Criminal Code of the Republic of Kazakhstan

1. The use of violence that is not dangerous to life or health, or the threat of using violence against a state inspector for the protection of wildlife, an inspector of a specialized wildlife protection organization, a game warden, or their close relatives in connection with the performance of their official duties or as revenge for the performance of their official duties —

shall be punishable by a fine in an amount of up to three thousand monthly calculation indices, or corrective labour in the same amount, or community service for a period of up to eight hundred hours, or restriction of liberty for a period of up to three years, or imprisonment for the same period.

2. The use of violence dangerous to life or health against the persons specified in the first part of this Article —

shall be punishable by imprisonment for a period of five to ten years.

3. An act provided for in the second part of this Article, committed:

1) against two or more persons;

2) against a person who is known to the perpetrator to be in a helpless condition, as well as when accompanied by kidnapping or hostage-taking;

3) with particular cruelty;

4) by a group of persons or a group of persons acting upon prior conspiracy;

5) for the purpose of concealing another crime or facilitating its commission;

6) repeatedly;

7) against a person who is knowingly a minor;

8) in conditions of an emergency situation or during mass riots;

9) in an area where a state of emergency has been declared or in a zone where an anti-terrorist operation is being conducted, —

shall be punishable by imprisonment for a period of seven to twelve years.

The public danger of the crime provided for in Article 380-2 of the Criminal Code lies in the fact that this act obstructs the lawful activities of state authorities represented by a state inspector for the protection of wildlife, an inspector of a specialized wildlife protection organization, or a game warden, frequently making the performance of their official activities impossible. At the same time, the authority of state power is undermined, and an encroachment is committed upon the health and bodily integrity of these persons and their close relatives.

An attack on a state inspector for the protection of wildlife, an inspector of a specialized wildlife protection organization, or a game warden performing their official duties is characterized by overt insolence, is accompanied by violence against the individual, and involves an attempt to change or disrupt the nature of the activities of the specified person, which increases its public danger.

The object of the crime under consideration is the social relations ensuring the activities of administrative bodies and state inspectors for the protection of wildlife, inspectors of specialized wildlife protection organizations, and game wardens. The additional object is the social relations guaranteeing the protection of the health of the above-mentioned employees and their close relatives.

The victims of the crime provided for in Article 380-2 of the Criminal Code are state inspectors for the protection of wildlife; inspectors of specialized wildlife protection organizations; game wardens and their close relatives.

According to the Law of the Republic of Kazakhstan “On the Protection, Reproduction and Use of Wildlife,” a state inspector for the protection of wildlife and an inspector of a specialized wildlife protection organization are officials exercising state control and supervision in the field of wildlife protection, reproduction and use.

In accordance with paragraph 1 of Article 52 of the above-mentioned Law: “Officials exercising state control and supervision in the field of wildlife protection, reproduction and use shall have the right to:

1. visit facilities for the purpose of monitoring compliance with the requirements of the legislation of the Republic of Kazakhstan in the field of wildlife protection, reproduction and use, as well as obtain information on the activities of wildlife users in accordance with the procedure established by the legislation of the Republic of Kazakhstan;
2. issue acts within the scope of the powers granted by this Law;
3. transfer inspection materials to law enforcement agencies for the adoption of a procedural decision;
4. determine the amount of damage caused as a result of violations of the legislation of the Republic of Kazakhstan in the field of wildlife protection, reproduction and use and, on this basis, submit claims to the persons at fault for voluntary compensation for such damage or file a lawsuit with the court;
5. consider cases of administrative offences in the field of wildlife protection, reproduction and use in accordance with the Code of the Republic of Kazakhstan on Administrative Offences;
6. stop vehicles and watercraft in hunting grounds, fishery reservoirs and (or) areas and their coastal strips, as well as in specially protected natural areas and when leaving such areas, and inspect them;

7-1) inspect water intake and discharge facilities for the presence of fish protection devices and their compliance with established requirements;

7-2) inspect documents authorizing the use of wildlife held by persons present in hunting grounds, fishery reservoirs and (or) areas, their coastal strips, and when leaving such areas;

1. seize prohibited types of equipment used for the extraction of wildlife objects for temporary storage until a court decision is issued;
2. seize illegally obtained wildlife objects and products of their vital activity in accordance with the procedure established by the legislation of the Republic of Kazakhstan;
3. seize firearms used in violation of the legislation of the Republic of Kazakhstan in the field of wildlife protection, reproduction and use for temporary storage until a court decision is issued;
4. store, carry and use special equipment and service weapons in accordance with the procedure established by the legislation of the Republic of Kazakhstan.”

According to subparagraph 64) of Article 1 of the Law of the Republic of Kazakhstan “On the Protection, Reproduction and Use of Wildlife,” a game warden is a specially authorized person of the gamekeeping service who protects wildlife in the assigned hunting grounds and fishery reservoirs and (or) areas.

In accordance with paragraph 2 of Article 56 of the above-mentioned Law: “A game warden shall have the right to:

1. draw up protocols on administrative offences in accordance with the legislation of the Republic of Kazakhstan on administrative offences, for their mandatory subsequent transfer to the territorial subdivision of the department of the authorized body;
2. carry service weapons and special clothing bearing insignia;
3. verify documents authorizing hunting and fishing held by individuals and legal entities;
4. seize firearms for violations of hunting rules, for their mandatory subsequent transfer to the internal affairs bodies;
5. seize equipment used for the extraction of wildlife objects in violation of the legislation of the Republic of Kazakhstan in the field of wildlife protection, reproduction and use, illegally obtained hunting and fishing products, and prohibited types of extraction equipment, for their mandatory subsequent transfer to a state inspector for the protection of wildlife.”

The objective aspect of the crime provided for in Article 380-2 of the Criminal Code consists in the use of violence that is not dangerous to life or health, or the threat of using violence against a state inspector for the protection of wildlife, an inspector of a specialized wildlife protection organization, a game warden, or their close relatives in connection with the performance of their official duties or as revenge for the performance of their official duties.

Violence is defined as the use of physical force against someone; coercive influence exerted on someone; oppression, lawlessness. As a rule, violence is the physical or psychological influence of one person upon another. Physical violence means the infliction of beatings or bodily injuries. Psychological violence means the intentional influence upon a person's psyche, and the humiliation of their honour and dignity through threats, insults and blackmail. Psychological violence is used as a means of intimidating and frightening the victim through the threat of physical violence. It most often takes the form of creating the impression of inevitable reprisal through certain verbal statements, gestures, or the demonstration of weapons or other objects.

Violence that is not dangerous to life or health should be understood as the infliction of beatings or the commission of other violent acts that cause physical pain. This form of violence must not result in a short-term health disorder, a minor permanent loss of working capacity, or any other more serious consequences.

A threat to use violence is understood as statements, intimidation or other actions of the perpetrator expressing an actual intention to use violence (cause death or harm to health) against a state inspector for the protection of wildlife, an inspector of a specialized wildlife protection organization, a game warden, or their close relatives. In this regard, the victim must perceive the threat as real.

For the qualification of the act, it is irrelevant whether the perpetrator intended to carry out the threat or not. Any type of threat to use violence against a state inspector for the protection of wildlife, an inspector of a specialized wildlife protection organization, a game warden, or their close relatives is covered by Part 1 of Article 380-2 of the Criminal Code and does not require additional qualification under Article 115 of the Criminal Code, which provides for criminal liability for threats.

In order to explain the concept of “in connection with the performance of their official duties,” it is necessary to define the term “official duty.” Service is a range of actions associated with the performance of a particular position. A duty is something that must be fulfilled unconditionally. Thus, an official duty is a set of employee actions aimed at achieving the objectives of the management system and mandatory for performance.

It should be noted that the expression “in connection with the performance of official duties” means that the motive for using violence that is not dangerous to life or health, or threatening to use such violence, is also connected with the previous activities of the state inspector for the protection of wildlife, the inspector of a specialized wildlife protection organization, or the game warden, and with hostility towards the specified persons in general. Consequently, the expression “in connection with the performance of official duties” covers both the use of violence against a state inspector for the protection of wildlife, an inspector of a specialized wildlife protection organization, or a game warden while they are performing their official duties, and cases where they are not performing such duties. That is, the criminal offence under consideration may also be committed when these persons are not directly performing their official duties, but violence that is not dangerous to life or health, or the threat thereof, is used against them in connection with the performance of those duties. The time interval between the performance of official duties by a state inspector for the protection of wildlife, an inspector of a specialized wildlife protection organization, or a game warden and the use of physical or psychological violence against them or their close relatives does not affect the qualification of the act in this case.

The expression “as revenge for the performance of official duties” means that the motive for using violence that is not dangerous to life or health, or threatening to use such violence, is connected with the previous activities of the state inspector for the protection of wildlife, the inspector of a specialized wildlife protection organization, or the game warden (hostility towards the specified persons in general).

Accordingly, the actions of the perpetrator are subject to qualification under Part 1 of Article 380-2 of the Criminal Code only if the perpetrator takes revenge against the victim exclusively for their lawful actions arising from their official duties. If, however, violence that is not dangerous to life or health, or the threat of such violence, is committed out of revenge for the unlawful actions of the victim, the person shall be subject only to administrative liability in accordance with Part 1 of Article 73-2 of the Code of the Republic of Kazakhstan on Administrative Offences, “Battery.”

The composition of the crime provided for in Article 380-2 of the Criminal Code is formal in its construction. The crime is considered completed from the moment physical or psychological violence is used against a state inspector for the protection of wildlife, an inspector of a specialized wildlife protection organization, a game warden, or their close relatives in connection with the performance of their official duties. For the qualification of the act, it is irrelevant whether the normal activities of the state inspector for the protection of wildlife, the inspector of a specialized wildlife protection organization, or the game warden were actually disrupted.

The actions of a person who threatens several state inspectors for the protection of wildlife, inspectors of specialized wildlife protection organizations, or game wardens in connection with the performance of their official duties, where such actions are motivated by a single motive and committed simultaneously in one place, constitute a single crime and are qualified under one provision of the Article under consideration.

The subjective aspect of the crime under consideration is characterized by direct intent. The perpetrator is aware that they are using violence against a state inspector for the protection of wildlife, an inspector of a specialized wildlife protection organization, or a game warden (in connection with the performance of their official duties), or against their close relatives, foresees the possibility or inevitability of socially dangerous consequences and desires their occurrence.

It should be noted that the terms “in connection with the performance of official duties” and “as revenge for the performance of official duties” may be said to constitute characteristics not only of the objective aspect but also of the subjective aspect of the crime. They mean that the fact of using violence that is not dangerous to life or health, or threatening to use such violence, is connected in time and space with the fact that the state inspector for the protection of wildlife, the inspector of a specialized wildlife protection organization, or the game warden is performing their official duties. From the subjective aspect, it must be proven that the motive for using violence that is not dangerous to life or health, or threatening to use such violence, was specifically their lawful official activities.

The subject of the crime provided for in Article 380-2 of the Criminal Code may be any sane person who has reached the age of 16.

Part 2 of Article 380-2 of the Criminal Code establishes criminal liability for the use of violence dangerous to life or health against a state inspector for the protection of wildlife, an inspector of a specialized wildlife protection organization, a game warden, or their close relatives.

Harm to health is defined on the basis of medical criteria set out in the Order of the Minister of Justice of the Republic of Kazakhstan dated April 27, 2017, “On Approval of the Rules for the Organization and Conduct of Forensic Examinations and Studies in Forensic Examination Bodies.”

The severity of the harm caused to health is established exclusively by a forensic medical examination.

Harm dangerous to life or health should be understood to include both bodily injuries and pathological conditions arising as a result of exposure to various external factors that may threaten the victim's life and result in death.

When violence dangerous to life or health is used, harm of any degree of severity may be caused to the victim: grievous, moderate or minor.

The characteristics of grievous, moderate and minor harm to human health are specified, respectively, in subparagraphs 11), 12) and 13) of Article 3 of the Criminal Code.

The infliction of minor, moderate and grievous harm is covered by Part 2 of Article 380-2 of the Criminal Code and does not require additional qualification under Articles 106, 107 and 108 of the Criminal Code.

Part 2 of the Article under consideration also applies to the use of violence dangerous to life or health which, although it did not cause harm, created a real danger to the victim's life or health at the moment it was used.

Part 3 of Article 380-2 of the Criminal Code establishes liability for the use of violence dangerous to life or health against a state inspector for the protection of wildlife, an inspector of a specialized wildlife protection organization, a game warden, or their close relatives in connection with the performance of their official duties or as revenge for the performance of their official duties, where such violence is committed:

1. against two or more persons;
2. against a person who is known to the perpetrator to be in a helpless condition, as well as when accompanied by kidnapping or hostage-taking;
3. with particular cruelty;
4. by a group of persons or a group of persons acting upon prior conspiracy;
5. for the purpose of concealing another crime or facilitating its commission;
6. repeatedly;
7. against a person who is knowingly a minor;
8. in conditions of an emergency situation or during mass riots;
9. in an area where a state of emergency has been declared or in a zone where an anti-terrorist operation is being conducted.

A detailed analysis of the above-mentioned particularly qualifying circumstances was provided in the commentary to Article 380 of the Criminal Code.

The act provided for in Part 1 of Article 380-2 of the Criminal Code is classified as a crime of medium gravity.

The acts provided for in Parts 2 and 3 of Article 380-2 of the Criminal Code are classified as serious crimes.

Commentary of 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 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, Honoured Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.

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