Commentary on Article 380. Use of Violence Against a Representative of Authority 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 representative of authority 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 a fine 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 Part One of this Article —

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

3. An act provided for in Part Two 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 involving the kidnapping of a person or the taking of a hostage;

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 criminal offence or facilitating its commission;

6) repeatedly;

7) against a person known to be a minor;

8) in a state of emergency 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 criminal offence provided for in Article 380 of the Criminal Code lies in the fact that this act obstructs the lawful activities of state authorities through their representatives, impedes and sometimes makes their official activities impossible, undermines their authority, and also infringes upon the health and bodily integrity of a representative of authority and their close relatives.

An assault on a representative of authority performing their official duties is characterised by overt insolence, is accompanied by violence against the individual, and involves an attempt to alter or disrupt the nature of that person's activities, which increases its public danger.

The object of the criminal offence under consideration is the public relations ensuring the activities of administrative bodies and representatives of authority. An additional object is the public relations guaranteeing the protection of the health and personal safety of representatives of authority and their close relatives.

The victims of the criminal offence provided for in Article 380 of the Criminal Code are representatives of authority and their close relatives.

Powers of authority mean the right to make decisions and issue requirements that are binding on citizens, institutions and organisations, regardless of their departmental affiliation or subordination.

For the purposes of this Article, close relatives shall mean immediate family members. Pursuant to subparagraph 13) of paragraph 1 of Article 1 of the Code of the Republic of Kazakhstan “On Marriage (Matrimony) and Family”, as well as paragraph 11 of Article 7 of the Criminal Procedure Code, close relatives are parents (a parent), children, adoptive parents, adopted children, full and half brothers and sisters, grandfather, grandmother and grandchildren.

The objective element of the criminal offence provided for in Article 380 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 representative of authority or their close relatives in connection with the performance of their official duties or out of revenge for the performance of their official duties.

Violence is defined as the use of physical force against someone; coercive influence on someone; oppression and lawlessness.

As a rule, violence is the physical or psychological impact of one person on another. Physical violence means inflicting beatings or causing bodily injury of varying degrees of severity. Psychological violence means deliberate influence on a person's psyche, humiliation of honour and dignity through threats, insults and blackmail. Psychological violence is used as a means of intimidating and frightening the victim with the use of physical violence. Most often, it is expressed through the creation of an impression of inevitable retaliation by means of 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, or the restriction of liberty (tying the hands, using handcuffs, leaving a person in a locked room, etc.). 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.

According to paragraph 383 of Section 56 of the Rules for the Organisation and Conduct of Forensic Examinations and Studies in Forensic Examination Bodies, approved by Order of the Minister of Justice of the Republic of Kazakhstan dated 27 April 2017, harm to health means a violation of the anatomical integrity of organs (tissues) or their physiological functions (bodily injuries), or diseases or pathological conditions arising as a result of exposure to various environmental factors: mechanical, physical, chemical, biological and psychogenic, as well as consequences resulting from defects in the provision of medical care that have led to a health disorder or death.

A health disorder should be understood as a condition of the body in which clinically pronounced pathological changes of a local and/or general nature are identified, caused by a specific injury or disease, where there is a violation of the anatomical integrity or physiological function of organs.

General working capacity should be understood as the totality of a person's innate and acquired abilities to perform actions aimed at achieving a socially significant result in the form of a particular product, item or service.

Professional working capacity should be understood as the ability to work in one's profession or in another activity of equivalent remuneration and qualifications.

Permanent loss of general working capacity is an irreversible loss of function (functions) that deprives a person of the ability to perform unskilled work, fully or partially, and to provide self-care.

The following actions by the perpetrator should be regarded as violence that is not dangerous to the life or health of the victim: depriving or restricting the victim's liberty, tying them up, detaining them, and any physical contact with hostile intent, including pushing, grabbing and other similar actions.

A threat to use violence means a statement, intimidation or other actions by the perpetrator expressing an actual intention to use violence (cause death or harm to health) against a representative of authority or their close relatives. At the same time, the victim must perceive this threat as real.

For the legal classification of the act, it is irrelevant whether the perpetrator intended to carry out the threat or not. Any form of threat to use violence against a representative of authority or their close relatives is covered by Part 1 of Article 380 of the Criminal Code and does not require additional classification under Article 115 of the Criminal Code, which provides for criminal liability for making threats.

For example, the actions of S., who threatened to use violence against a representative of authority in connection with the performance of that representative's official duties, were correctly classified under Part 1 of Article 380 of the Criminal Code. On 5 July 2019, at 21:31, a report was received by the duty unit of the Ili District Police Department via telephone number 102 stating that a fight was taking place in the settlement of Otegen Batyr. Officers of the Berkut-211 road patrol service of the Ili District Police Department, Senior Police Sergeant A. and Police Sergeant Major Zh., were dispatched to the scene. Upon arriving at the specified address, police officers A. and Zh. approached the door of the house and began knocking. After some time, S., a resident of the house, came outside, dressed only from the waist down and holding a kitchen knife in his hand. In response to the lawful demand by police officers A. and Zh. to throw away the knife, S., who was intoxicated, did not react in any way and began advancing towards the police officers while holding the knife. In order to prevent a criminal assault on the lives and health of the police officers and the gathered citizens, police officer A. drew his service weapon, a Makarov pistol, and fired a warning shot into the air. However, S. did not react to these lawful actions by the police officers and continued advancing towards them while holding the knife. In order to prevent a criminal assault on the lives and health of the police officers and the gathered citizens, police officer A. fired a second aimed shot from his service weapon, a Makarov pistol, into S.'s left leg, while police officer Zh., also in order to prevent a criminal assault on the lives and health of the police officers and the gathered citizens, drew his service weapon, a Makarov pistol, from its holster and fired an aimed shot into S.'s right leg. As a result of these actions, S. fell to the ground due to the gunshot wounds to his legs and was neutralised by police officers A. and Zh., who subsequently transported S. to the central district hospital in the settlement of Otegen Batyr to receive medical assistance.

It should be noted that the term “in connection with the performance of official duties”, used in the wording of Part 1 of Article 380 of the Criminal Code, is broader than the concept of “while performing official duties” provided for in Article 378 of the Criminal Code.

As noted in the analysis of Article 378 of the Criminal Code, the concept of “while a representative of authority is performing their official duties” means that a civil servant, an employee of a law enforcement or special state body, a military police body, or a servicemember involved in maintaining public order is on duty (at work) and performs actions that must be carried out unconditionally and are aimed at achieving the objectives of the management system.

The concept of “in connection with the performance of duties” provides 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 representative of authority's previous activities (hostility towards the representative of authority as such). Consequently, the concept of “in connection with the performance of duties” covers both the use of violence against representatives of authority while they are performing their official duties and cases where they are not performing those duties. That is, the criminal offence under consideration may also be committed when the representative of authority is not directly performing their official duties, but violence that is not dangerous to life or health, or the threat thereof, is directed against them in connection with the performance of those duties. The time interval between the performance of official duties by a representative of authority and the use of physical or psychological violence against that representative or their close relatives does not affect the legal classification in this case.

If the act is committed outside the circumstances specified above, that is, if it is not connected with the performance of the representative of authority's official duties, criminal liability shall arise under the relevant Articles of Chapter 1, “Criminal Offences Against the Person”.

Revenge means harmful actions committed out of a desire to punish someone for harm previously inflicted upon the individual, that is, retaliation for something. Thus, the motive of revenge essentially implies an act of retribution, the infliction of harm in response to harm previously caused to a person. In this case, however, the victim's conduct is regarded as wrongdoing solely from the perpetrator's point of view, since the grounds for revenge consist of the lawful conduct of the representative of authority.

The actions of the perpetrator are subject to classification under Part 1 of Article 380 of the Criminal Code only if the perpetrator takes revenge on the victim exclusively for the victim's lawful actions arising from their official duties. If, however, violence that is not dangerous to life or health, or the threat thereof, is committed out of revenge for the victim's unlawful actions, the person shall be held administratively liable in accordance with Part 1 of Article 73-2 of the Code of Administrative Offences, “Battery”.

It should be noted that liability for the criminal offence under consideration arises not only in cases where violence that is not dangerous to life or health, or the threat thereof, is used against a representative of authority performing their official duties, but also when it is used against that representative's close relatives. The use of violence that is not dangerous to life or health, or the threat thereof, against a close relative of a representative of authority performing their official duties constitutes a means of taking revenge on the representative of authority by causing them emotional suffering.

The elements of the criminal offence provided for in Article 380 of the Criminal Code are formal in nature. The criminal offence is considered completed from the moment physical or psychological violence is used against a representative of authority or their close relatives in connection with the performance of the representative's official duties. For the legal classification of the act, it is irrelevant whether the normal activities of the representative of authority were actually disrupted.

The actions of a person who threatens several representatives of authority in connection with the performance of their official duties, where such actions are motivated by a single motive and committed simultaneously in one location, constitute a single criminal offence and are classified under one Article of the Criminal Code being commented on.

The subjective element of the criminal offence under consideration is characterised by direct intent. The perpetrator is aware that they are using violence against a representative of authority (in connection with the latter's performance of official duties) or their close relatives, foresees the possibility or inevitability of socially dangerous consequences and desires their occurrence.

Thus, the Taldykorgan City Court established that the Berkut-157 road police patrol of the Administrative Police Department of the Taldykorgan City Internal Affairs Department received an alert concerning the detention of the driver of a Toyota Camry-40 motor vehicle. The driver had violated the traffic rules provided for in Parts 2 and 5 of Article 590 of the Code of Administrative Offences, “Violation of the Rules for the Operation of Vehicles”. The driver of the aforementioned vehicle, P., being aware of the socially dangerous nature of his actions, foreseeing the inevitability of socially dangerous consequences and desiring their occurrence, attempted to flee and struck a police officer with the vehicle. As a result, the officer ended up on the bonnet of the car and grabbed hold of it. Despite this, driver P. continued driving the vehicle, attempting to throw the police officer off the bonnet. The car travelled approximately 200 metres. As a result, according to the conclusion of the forensic medical examination, the police officer sustained minor bodily injury. By the court's verdict, P. was found guilty under Part 2 of Article 380 of the Criminal Code, “Use of Violence Against a Representative of Authority”.

It should be noted that the expressions “in connection with the performance of official duties” and “out of revenge for the performance of official duties” indicate elements not only of the objective but also of the subjective side of the offence. 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 place with the fact that the representative of authority is performing their official duties. From the subjective perspective, 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 precisely the lawful official activities of the representative of authority.

The subject of the criminal offence provided for in Article 380 of the Criminal Code may be any physically capable and sane person who has reached the age of 16.

Part 2 of Article 380 of the Criminal Code establishes criminal liability for the use of violence dangerous to life or health against a representative of authority 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 “On Approval of the Rules for the Organisation and Conduct of Forensic Examinations and Studies in Forensic Examination Bodies”.

The severity of harm caused to health is established exclusively through 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, the victim may sustain harm of any degree of severity: grievous, moderate or minor.

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

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

Criminal law also distinguishes particularly aggravated forms of the use of violence dangerous to the life or health of a representative of authority or their close relatives.

Thus, paragraph 1) of Part 3 of Article 380 of the Criminal Code provides for the use of violence dangerous to life or health against two or more persons, that is, against two or more representatives of authority or their close relatives, as a particularly aggravating circumstance.

The basis for classifying the use of violence dangerous to life or health under paragraph 1) of Part 3 of Article 380 of the Criminal Code is the perpetrator's intent to simultaneously use violence dangerous to life or health against several representatives of authority or their close relatives. In such cases, the use of violence dangerous to life and health against two or more representatives of authority or their close relatives is generally committed through one act or several acts within a short period of time and indicates a single intent on the part of the perpetrator to use violence dangerous to life or health against two or more representatives of authority or their close relatives.

For example, K. used violence dangerous to life and health against three police officers over the course of one month. K.'s actions were not covered by a single intent, since significant time intervals existed between the criminal acts, indicating that on each occasion K.'s intent to commit the offence of using violence dangerous to life and health arose anew. Therefore, K.'s criminal actions were not classified under paragraph 1) of Part 3 of Article 380 of the Criminal Code, but were reasonably classified under paragraph 6) of Part 3 of Article 380 of the Criminal Code as repeated commission.

If the use of violence dangerous to life or health against representatives of authority is committed by the perpetrator jointly with other persons, and their intent is directed towards using violence dangerous to life or health against several representatives of authority or their close relatives, and, in order to carry out this intent, they distribute roles among themselves, as a result of which each participant in the criminal offence directly participates in the use of violence dangerous to life or health against only one representative of authority or one of that representative's close relatives, the actions of each participant shall also be classified under paragraph 1) of Part 3 of Article 380 of the Criminal Code.

Paragraph 2) of Part 3 of Article 380 of the Criminal Code provides, as a particularly aggravating circumstance, for the use of violence dangerous to life or health against a person (a representative of authority or their close relatives) who is known to the perpetrator to be in a helpless condition, as well as violence involving the kidnapping of a person or the taking of a hostage.

A helpless condition is a condition in which, due to certain circumstances, a person is unable to resist the offender or does not understand the consequences of the offender's actions.

Thus, the victim's helpless condition is determined by their inability, due to their physical or mental state, to protect themselves or actively resist the perpetrator, while the perpetrator must be aware of this circumstance. Such persons include seriously ill individuals, elderly people and persons suffering from mental disorders that deprive them of the ability to adequately perceive what is happening.

It should be noted that, for the legal classification of the perpetrator's actions, it is irrelevant whether the victim placed themselves in a helpless condition or whether this occurred as a result of the actions of other persons. The perpetrator's actions in rendering the victim unconscious are not taken into account. However, if the perpetrator's intent included rendering the victim unconscious by administering sleeping medication, alcoholic beverages, narcotic substances, etc., and subsequently using violence dangerous to life or health against a person in that condition, the perpetrator's actions should be classified under paragraph 2) of Part 3 of Article 380 of the Criminal Code.

Kidnapping a person should be understood as unlawful intentional actions aimed at taking possession of a person secretly, openly or through deception, as well as moving the victim from the place where they are located and holding them against their will in another place.

The term “involving” means being mutually connected, interacting or accompanied by something. The use of violence dangerous to life or health against a representative of authority or their close relatives involving kidnapping a person should be understood as causing various forms of harm to the health of a representative of authority or their close relatives, accompanied by the kidnapping of that representative or their close relatives.

When classifying the use of violence dangerous to life or health against a representative of authority or their close relatives involving kidnapping, it should be borne in mind that liability under paragraph 2) of Part 3 of Article 380 of the Criminal Code arises when violence dangerous to life or health is used against the kidnapped representative of authority or their close relatives, as well as when, in connection with the kidnapping of a representative of authority or their close relatives, violence dangerous to life or health is used against another representative of authority (for example, the use of violence dangerous to life or health against a police captain who prevents the kidnapping of a police lieutenant). In such cases, the kidnapping of a representative of authority or their close relative and the use of violence dangerous to life or health against a representative of authority or their relative constitute a concurrence of criminal offences, and each criminal offence is subject to independent classification under the relevant Parts of Article 125 of the Criminal Code and paragraph 2) of Part 3 of Article 380 of the Criminal Code.

A hostage is a person held by force for the purpose of compelling someone (the hostage's relatives, representatives of authority or others) to perform certain actions, fulfil certain obligations or refrain from performing undesirable actions in exchange for the hostage's release and to prevent their killing or the infliction of harm to their health.

Taking a hostage means taking possession of a person followed by restricting their freedom of movement. A hostage may be taken by any means: secretly, openly, through deception, with or without the use of violence.

In accordance with Article 261 of the Criminal Code, hostage-taking means seizing or holding a person as a hostage for the purpose of compelling the state, an organisation or another person to perform or refrain from performing any action as a condition for the release of the hostage.

The use of violence dangerous to life or health against a representative of authority or their close relatives involving hostage-taking should be understood as causing various forms of harm to the health of a representative of authority or their close relatives, accompanied by taking possession of that representative or their close relatives, restricting their freedom of movement and forcibly preventing their release for the purpose of compelling the state, an organisation or another person to perform or refrain from performing any action as a condition for the release of the representative of authority or their close relative.

The paragraph of Part 3 of Article 380 of the Criminal Code under consideration applies regardless of when violence dangerous to life or health was used against the victim — during the process of kidnapping (seizure) or after a certain period of time had elapsed.

The use of violence dangerous to life or health against a representative of authority or their close relatives committed during the taking of a hostage or while the hostage is being held must be independently classified under the relevant Parts of Articles 261 and 380 of the Criminal Code, depending on the established aggravating circumstances of each criminal offence.

Paragraph 3) of Part 3 of Article 380 of the Criminal Code provides, as a particularly aggravating circumstance, for the use of violence dangerous to life or health against a representative of authority or their close relatives with particular cruelty. The use of violence dangerous to life or health against a person (a representative of authority or their close relatives) with particular cruelty implies extraordinary, “inhuman” cruelty and the manifestation of exceptional mercilessness and sadism.

The following circumstances may indicate particular cruelty: the use of torture or torment against the victim during the commission of violence dangerous to life or health; the infliction of a large number of injuries; depriving the victim of water or food for a prolonged period; or the use by the perpetrator of a painfully acting poison or acid to cause the victim particular suffering. The infliction of moral suffering on the victim's close relatives, in whose presence violence dangerous to life or health was used, may also indicate particular cruelty. These circumstances indicating particular cruelty demonstrate that the essence of this method of committing a criminal act lies in the deliberate infliction of physical or moral torment and suffering upon the victim.

When using violence dangerous to life or health against a representative of authority or their close relatives with particular cruelty, the perpetrator must be aware of the particularly cruel nature of the act and must either desire or consciously accept precisely such a manner of using violence.

Particular cruelty is expressed not only in objective actions but also in the perpetrator's mental attitude. The concept of “particular cruelty” is not a medical concept but a legal one. The question of whether this aggravating circumstance is present or absent in the use of violence dangerous to the life or health of a representative of authority or their close relatives is decided by investigative or judicial authorities in accordance with the norms of morality and ethics established in civilised society. Medical experts are competent to determine whether the victim experienced particular suffering as a result of the specific method of using violence. The motives for particular cruelty may vary, including malice, revenge, greed and others, and do not affect the legal classification, although they may be taken into account when imposing punishment.

The use of violence dangerous to life or health against a representative of authority or their close relatives with particular cruelty may be classified under paragraph 3) of Part 3 of Article 380 of the Criminal Code not only when the perpetrator specifically sought to demonstrate particular cruelty, but also when the perpetrator was aware that the particular method of using violence dangerous to life or health would cause the victim especially severe suffering and knowingly proceeded with it.

Paragraph 4) of Part 3 of Article 380 of the Criminal Code provides, as a particularly aggravating circumstance, for the use of violence dangerous to life or health against a representative of authority or their close relatives by a group of persons or a group of persons acting upon prior conspiracy.

When a criminal offence is committed by several persons, it is necessary to establish the degree of participation of each accomplice, determine whether there was a prior conspiracy between them, whether roles were distributed, and establish all other circumstances on the basis of which a conclusion may be reached that the act was committed by a group of persons or by a group of persons acting upon prior conspiracy. It is also necessary to determine the degree of participation of each person held criminally liable, individually classify their actions and impose a fair punishment.

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According to Article 31 of the Criminal Code, the use of violence dangerous to life or health against a representative of authority or their close relatives shall be recognised as having been committed by a group of persons if it was committed through the joint actions of two or more perpetrators of the criminal offence acting without prior conspiracy.

In accordance with Article 28 of the Criminal Code, the perpetrators of the use of violence dangerous to life or health against a representative of authority or their close relatives should be recognised as persons who acted with a common intent to cause harm to the victim and who themselves directly participated in the process of using violence against the victim, or did so through the use of other persons who are not subject to criminal liability due to their age, insanity or other circumstances provided for by the Criminal Code. Their actions are subject to classification under the analysed paragraph of the Article under consideration (paragraph 4) of Part 3 of Article 380 of the Criminal Code). The actions of other accomplices who used violence dangerous to life or health against a representative of authority or their close relatives and who, in accordance with Parts 3, 4 and 5 of Article 28 of the Criminal Code, are recognised as organisers, accomplices or instigators of the criminal offence, provided that they were not simultaneously co-perpetrators of the criminal offence, must be classified under the Article providing for liability for the criminal offence committed, with reference to Article 28 of the Criminal Code.

The use of violence dangerous to life or health against a representative of authority or their close relatives committed by a group of persons acting upon prior conspiracy is recognised as the commission of an act involving persons who had agreed in advance to jointly commit a criminal offence. In order to classify the use of violence dangerous to life or health against a representative of authority or their close relatives committed by a group of persons acting upon prior conspiracy, it is necessary, firstly, to establish the existence of a prior agreement to use violence against a representative of authority or their close relatives and, secondly, to establish that at least two members of such a group acted as co-perpetrators.

Paragraph 5) of Part 3 of Article 380 of the Criminal Code provides, as a particularly aggravating circumstance, for the use of violence dangerous to life or health against a representative of authority or their close relatives for the purpose of concealing another criminal offence or facilitating its commission.

When committing this criminal offence, the perpetrator pursues the objective of completely concealing a previously committed criminal offence or circumstances affecting its legal classification and the measure of punishment. When using violence dangerous to life or health against a representative of authority or their close relatives for the purpose of facilitating the commission of another criminal offence, the perpetrator may commit this act either before the planned criminal offence is committed or during its commission.

For the classification of actions under paragraph 5) of Part 3 of Article 380 of the Criminal Code, it is not necessary that the perpetrator achieve the intended objective as a result of using violence dangerous to life or health, namely, concealing another criminal offence or facilitating its commission.

The use of violence dangerous to life or health against a representative of authority or their close relatives may be classified as having been committed for the purpose of concealing another criminal offence or facilitating its commission if the motive for committing it was the desire, by using violence against the representative of authority or their close relative, to facilitate the commission of a new criminal offence or conceal a previously committed criminal offence by the perpetrator or another person, of which the representative of authority or their close relative is aware. In this regard, it is irrelevant whether the concealed criminal offence was committed against the representative of authority or their close relative or against other persons, whether it belongs to the category of intentional, serious or negligent criminal offences, or whether the perpetrator achieved their objective as a result of using violence.

The use of violence dangerous to life or health against a representative of authority or their close relatives for the purpose of concealing another criminal offence may take place not only when that criminal offence has not yet been reported to the relevant authorities, or when a report of the criminal offence has been received but the perpetrator was unaware of this, but also in cases where a report of the criminal offence has been received by the relevant authorities, those authorities know the identity of the person who committed the criminal offence, and the perpetrator is aware of this.

Paragraph 6) of Part 3 of Article 380 of the Criminal Code provides for repeated commission as a particularly aggravating circumstance. According to Article 12 of the Criminal Code, repeated commission means the commission of two or more acts provided for by the same Article or the same Part of an Article of the Special Part.

In accordance with the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated 25 December 2006, “On the Classification of Repeated Commission and Concurrence of Criminal Offences”, repeated commission presupposes the commission by the same person of several criminal offences provided for by the same Article or the same Part of an Article of the Special Part of the Criminal Code.

Repeated commission should be understood as the commission of two or more acts provided for in Article 380 of the Criminal Code or a Part of Article 380 of the Criminal Code. At the same time, it should be taken into account that a crime and a criminal misdemeanour do not constitute repeated commission in relation to each other. The criminal offence under consideration shall not be recognised as having been committed repeatedly if the person was convicted of a previously committed criminal offence provided for in Article 380 of the Criminal Code or was released from criminal liability on grounds established by law.

If a person used violence dangerous to life and health against representatives of authority or their close relatives several times, without those acts being united by a single intent, and has not been convicted for any of them, and if the limitation periods for bringing criminal liability for the previous use of violence against a representative of authority or their close relatives have not expired, all such acts shall be classified under paragraph 6) of Part 3 of Article 380 of the Criminal Code (and, where grounds exist, under other relevant paragraphs as well). In this case, separate classification of the first use of violence against a representative of authority or their close relatives in chronological order under Parts 1, 2 or 3 of Article 380 of the Criminal Code is not required.

The distinction between the repeated use of violence against a representative of authority or their close relatives and the use of violence against two or more representatives of authority or their close relatives must be made on the basis of the subjective element of the criminal offence: if each act of violence constituting repeated commission was covered by an independent intent, the acts are subject to classification under paragraph 6) of Part 3 of Article 380 of the Criminal Code; where the perpetrator's intent was unified and initially directed towards the deliberate unlawful use of violence against two or more representatives of authority or their close relatives, the act should be classified under paragraph 1) of Part 3 of Article 380 of the Criminal Code.

Paragraph 7) of Part 3 of Article 380 of the Criminal Code provides, as a particularly aggravating circumstance, for the use of violence dangerous to life or health against a close relative of a representative of authority who is known to be a minor.

According to the Law of the Republic of Kazakhstan dated 8 August 2002, “On the Rights of the Child in the Republic of Kazakhstan”, a child is a person who has not reached the age of eighteen (the age of majority).

In order to classify the use of violence against a representative of authority or their close relatives under paragraph 7) of Part 3 of Article 380 of the Criminal Code, it is necessary to establish that, before committing the criminal offence, the perpetrator was aware of the victim's minor age. If the perpetrator was mistaken or did not know that the victim was a minor, their actions should be classified under Part 1 or Part 2 of Article 380 of the Criminal Code, provided there are no other aggravating circumstances provided for in Part 3 of Article 380 of the Criminal Code.

Paragraph 8) of Part 3 of Article 380 of the Criminal Code provides, as a particularly aggravating circumstance, for the use of violence dangerous to life or health against a representative of authority or their close relatives in a state of emergency or during mass riots.

In accordance with subparagraph 66) of Article 1 of the Law of the Republic of Kazakhstan dated 11 April 2014, “On Civil Protection”, an emergency situation is a situation in a certain territory resulting from an accident, fire, harmful effects of hazardous industrial factors, a dangerous natural phenomenon, a catastrophe, a natural or other disaster, which may result or has resulted in human casualties, harm to human health or the environment, significant material damage and disruption of people's living conditions.

An accident is the destruction of buildings, structures and/or technical devices, uncontrolled explosions and/or the release of hazardous substances.

A fire is an uncontrolled combustion process that creates a threat to, or causes harm to, the life and health of people and animals, and causes material damage to individuals and legal entities, as well as to the interests of society and the state.

A hazardous industrial factor is a physical phenomenon arising from accidents or incidents at hazardous industrial facilities and social infrastructure facilities, causing harm (damage) to individuals and legal entities and to the environment.

A dangerous natural phenomenon is an event of natural origin or a condition of elements of the natural environment resulting from natural processes which, due to their intensity, scale of distribution and duration, may have a damaging impact on people, economic facilities and the environment.

A catastrophe is a major adverse event (an accident, natural disaster, etc.) entailing tragic consequences (destruction, loss of human life, death of animals and destruction of plant life).

A natural disaster is a destructive natural or natural-anthropogenic phenomenon or process of significant scale, as a result of which a threat to human life and health may arise or has arisen, and material assets and components of the natural environment may be damaged or destroyed.

According to the aforementioned Law, natural emergencies are emergencies arising as a result of dangerous natural phenomena (geophysical, geological, meteorological, agrometeorological and hydrogeological hazardous phenomena), natural fires, epidemics, and damage to agricultural plants and forests by diseases and pests.

Technogenic emergencies are emergencies caused by the harmful effects of hazardous industrial factors, transport and other accidents, fires (explosions), accidents involving the release (or threat of release) of highly potent toxic, radioactive and biologically hazardous substances, sudden collapses of buildings and structures, dam failures, accidents involving electric power and communication life-support systems, and wastewater treatment facilities.

In accordance with the Law of the Republic of Kazakhstan dated 8 February 2003, “On the State of Emergency”, a social emergency is an emergency situation caused by the emergence, in a certain territory, of contradictions and conflicts in the sphere of social relations that may result or have resulted in human casualties, harm to health, significant property damage or disruption of the living conditions of the population.

The territory in which an emergency situation has arisen is called an emergency zone.

There is currently no definition of the concept of “mass riots” in the legislation of Kazakhstan. At the same time, the Criminal Code of the Republic of Kazakhstan contains a number of criminal offences that include the term “mass riots”. The term “mass riots” is also used in the Law of the Republic of Kazakhstan dated 23 April 2014, “On Internal Affairs Bodies of the Republic of Kazakhstan”, in the Law of the Republic of Kazakhstan “On the State of Emergency”, in the Law of the Republic of Kazakhstan dated 10 January 2015, “On the National Guard of the Republic of Kazakhstan”, and in other regulatory legal acts. However, none of these acts contains a definition of the concept of “mass riots”; accordingly, the characteristics of this concept have not been defined at the legislative level.

The term “mass” means “committed by a large number of people or by a crowd”. The concept of “disorder” is understood in two meanings: as the absence or violation of order; and as unrest in society expressing protest against the authorities.

It can be stated that mass riots are unlawful activities carried out by a large number of people. Mass riots are an infringement upon public security committed by a large group of people (a crowd), accompanied by violence against people, pogroms, arson, destruction of property, the use of firearms, explosives or explosive devices, and the provision of armed resistance to representatives of authority.

Actions are classified under this paragraph of Part 3 of Article 380 of the Criminal Code when the person was aware of the socially dangerous nature of their actions, foresaw the possibility or inevitability of socially dangerous consequences and desired their occurrence.

Paragraph 9) of Part 3 of Article 380 of the Criminal Code provides, as a particularly aggravating circumstance, for the use of violence dangerous to life or health against a representative of authority or their close relatives in an area where a state of emergency has been declared or in a zone where an anti-terrorist operation is being conducted.

In accordance with subparagraph 5) of Article 1 of the Law of the Republic of Kazakhstan “On the State of Emergency”, a state of emergency is a temporary measure applied exclusively in the interests of ensuring the safety of citizens and protecting the constitutional order of the Republic of Kazakhstan. It constitutes a special legal regime for the activities of state bodies and organisations, permitting the imposition of certain restrictions on the rights and freedoms of citizens, foreigners and stateless persons, as well as on the rights of legal entities, and imposing additional obligations on them. According to subparagraph 6) of Article 1 of the aforementioned Law, the boundaries of the area in which a state of emergency is introduced are the territory of one or more administrative-territorial units of the Republic of Kazakhstan.

The definition of an administrative-territorial unit is contained in the Law of the Republic of Kazakhstan dated 8 December 1993, “On the Administrative-Territorial Structure of the Republic of Kazakhstan” (see the commentary to Article 379 of the Criminal Code).

A state of emergency throughout the territory of the Republic of Kazakhstan or in certain areas thereof is introduced by the President of the Republic of Kazakhstan through the issuance of an appropriate decree following official consultations with the Prime Minister and the Speakers of the Chambers of the Parliament of the Republic of Kazakhstan, with the Parliament of the Republic of Kazakhstan being notified immediately.

The Presidential Decree of the Republic of Kazakhstan on the introduction of a state of emergency is subject to immediate publication in official printed publications in accordance with the legislation of the Republic of Kazakhstan and is communicated to the population through all mass media.

For example, in the Auezov District of Almaty, during the state of emergency declared due to the COVID-19 pandemic, an attack on police officers took place on the evening of 6 April. A group of individuals was drinking alcoholic beverages in the courtyard of one of the residential buildings in the First Microdistrict. They had organised an improvised picnic on the children's playground. The individuals responded aggressively to the remarks made by the district police officers and did not want to comply with the quarantine regime rules. During an attempt to take the individuals to the police department, five men attacked the police officers. As a result, the perpetrators were held criminally liable, and their actions were classified under paragraph 9) of Part 3 of Article 380 of the Criminal Code (use of violence dangerous to life or health against a representative of authority in an area where a state of emergency has been declared).

According to subparagraph 7) of Article 1 of the Law of the Republic of Kazakhstan “On Counteracting Terrorism”, an anti-terrorist operation is a set of special measures involving the use of physical force, service dogs, combat and other equipment, weapons and special means to prevent and suppress an act of terrorism, neutralise terrorists and explosive devices, ensure the safety of individuals and organisations, and minimise and/or eliminate the consequences of an act of terrorism.

A locality is a specific place, space or area of the Earth's surface.

An aquatic area is the water surface of something, a section of water surface within certain boundaries.

Airspace is the part of the Earth's atmosphere suitable for aircraft flights, as opposed to airless (outer) space. International agreements recognise state sovereignty over airspace but do not extend it to outer space. Sovereign airspace is generally located above the land areas belonging to a state, its territorial and internal waters, and its border waters.

Vehicles are devices designed to move people, various cargoes and different equipment installed on the vehicle from one place to another. Modes of transport are classified depending on the environment in which the vehicle operates and transportation takes place. Water, land, air, underground and space vehicles are distinguished. There are also combined vehicles capable of moving through several environments, including amphibious vehicles, aeroplanes and certain types of hovercraft.

A building is a ground-level construction structure containing premises for residence (a dwelling) and/or human activities, the accommodation of production facilities, the storage of products or the keeping of animals. A building may have usable premises in its underground section. A structure that has no above-ground part is not considered a building.

A construction is an architectural object intended for housing, production activities and other purposes. Buildings and structures are included among constructions.

A structure is a three-dimensional, planar or linear construction system having ground-level, above-ground and/or underground parts, consisting of load-bearing and, in certain cases, enclosing building structures, and intended for carrying out various production processes, storing products, temporarily accommodating people, and transporting people and cargo.

A premises is a space inside a building that has a specific functional purpose and is bounded by construction structures.

An anti-terrorist operation is conducted for the purpose of suppressing an act of terrorism, neutralising terrorists and explosive devices, ensuring the safety of individuals and organisations, and minimising and/or eliminating its consequences.

The boundaries of the operational zone, as well as the start and end times of an anti-terrorist operation, are determined by the head of the operational headquarters, who also makes decisions on the directions and limits of the use of the forces and resources assigned to the operation.

Depending on the scale and degree of public danger and the expected negative consequences of an act of terrorism, the anti-terrorist operation is directed by the head of the republican or regional operational headquarters, the operational headquarters of a city of republican significance or the capital, the operational headquarters of a district (a city of regional significance), or the maritime operational headquarters.

See the explanations of most of the particularly aggravating circumstances discussed above in the commentary to Part 3 of Article 380 of the Criminal Code; they are also contained in the Regulatory Resolutions of the Supreme Court of the Republic of Kazakhstan (with regard to Articles 99 and 120 of the Criminal Code):

dated 11 May 2007, “On the Classification of Certain Criminal Offences Against Human Life and Health”;

dated 11 May 2007, “On Certain Issues of the Classification of Criminal Offences Related to Rape and Other Violent Acts of a Sexual Nature”.

The act provided for in Part 1 of Article 380 of the Criminal Code belongs to the category of medium-gravity crimes.

The acts provided for in Parts 2 and 3 of Article 380 of the Criminal Code belong to the category of serious crimes.

Commentary on the 2021 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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