Commentary on Article 392. Intentional Illegal Crossing of the State Border of the Republic of Kazakhstan of the Criminal Code of the Republic of Kazakhstan

1. Intentional illegal crossing of the State Border of the Republic of Kazakhstan outside border crossing points, as well as intentional illegal crossing of the State Border of the Republic of Kazakhstan at the aforementioned crossing points using forged documents or through the fraudulent use of valid documents belonging to third parties, as well as in violation of the established procedure, —

shall be punishable by a fine in an amount of up to one thousand monthly calculation indices or restriction of freedom for the same amount, or imprisonment for a term of up to one year, with the expulsion of a foreigner or stateless person from the Republic of Kazakhstan for a period of five years.

2. The same acts committed by a criminal group or involving the use of violence or the threat of its use, —

shall be punishable by imprisonment for a term of up to five years, with the expulsion of a foreigner or stateless person from the Republic of Kazakhstan for a period of five years.

The inviolability of state borders is one of the most important attributes of state sovereignty. Every person may cross the State Border only after obtaining the appropriate permission and in accordance with the rules established by the competent authorities of the Republic of Kazakhstan.

The definition of the concept of the “State Border of the Republic of Kazakhstan” is contained in Article 1 of the Law of the Republic of Kazakhstan dated January 16, 2013, “On the State Border of the Republic of Kazakhstan.”

The regime for protecting the State Border of the Republic of Kazakhstan includes the rules governing the maintenance of the State Border, its crossing by persons and vehicles, the movement of cargo, goods and animals, and the passage of persons, vehicles, goods and animals.

The public danger of the crime provided for in Article 391 of the Criminal Code lies in the fact that it infringes upon the inviolability of the State Border of the Republic of Kazakhstan. As a result of the intentional illegal crossing of the State Border, the established rules for crossing it and the administrative procedures for ensuring the State Border regime are violated.

The object of the crime under consideration is the public relations governing the procedure for crossing the State Border of the Republic of Kazakhstan.

The objective side of the crime provided for in Article 391 of the Criminal Code consists of the intentional illegal crossing of the State Border of the Republic of Kazakhstan outside border crossing points, as well as the intentional illegal crossing of the State Border of the Republic of Kazakhstan at the aforementioned crossing points using forged documents or through the fraudulent use of valid documents belonging to third parties, as well as in violation of the established procedure.

The procedure for crossing the State Border by individuals is regulated by the Law “On the State Border of the Republic of Kazakhstan,” other regulatory legal acts and international treaties, for example, the Agreement between the Governments of the Member States of the Shanghai Cooperation Organization on Cooperation in Providing Assistance in the Elimination of Emergency Situations dated October 26, 2005 (ratified by the Republic of Kazakhstan on May 29, 2007).

The passage of persons, vehicles, cargo and goods across the State Border means the recognition of the legality of crossing (authorization to cross) the State Border by persons, the movement of vehicles, and the transportation of cargo and goods across the State Border.

The passage of persons, vehicles, cargo and goods across the State Border is carried out at crossing points opened in accordance with the legislation of the Republic of Kazakhstan and international treaties ratified by the Republic of Kazakhstan, as well as at other locations where passage across the State Border is carried out, as determined by the Government of the Republic of Kazakhstan.

According to subparagraph 14) of Article 2 of the Law of the Republic of Kazakhstan “On the State Border of the Republic of Kazakhstan,” a border crossing point is a territory (water area) within the boundaries of a railway or bus station, a seaport or river port, an international airport or aerodrome, as well as another specially designated area of land in the immediate vicinity of the State Border, equipped with the appropriate infrastructure, where the passage of persons, vehicles, cargo and goods is carried out.

Another location where passage across the State Border is carried out is a territory (water area) that is not a border crossing point, where, in exceptional cases, the passage of persons, vehicles, cargo and goods across the State Border is carried out.

The rules for opening (closing), functioning (operation), categorization, classification and development of crossing points, as well as the requirements for their technical equipment and organization of operations, are determined by the Government of the Republic of Kazakhstan.

The list of crossing points is approved by the Government of the Republic of Kazakhstan. Units of the supervisory authorities responsible, within their respective competences, for organizing border, customs, transport, sanitary and quarantine, veterinary and phytosanitary control are stationed at crossing points.

When persons pass through crossing points, as well as other locations where passage across the State Border is carried out, the passport control line serves as the State Border.

Entry into and exit from the territory of a special economic zone, the boundaries of which fully or partially coincide with sections of the customs border of the Eurasian Economic Union, by officials of state bodies, employees of the cash-in-transit service operating within the territory of such special economic zone, as well as persons visiting such special economic zone for official purposes, shall be carried out in accordance with the procedure determined by the National Security Committee of the Republic of Kazakhstan.

The entry and exit of special-purpose motor vehicles of the cash-in-transit service shall be carried out by inspecting them, if necessary, without opening sealed cash-in-transit bags (sacks).

For the purpose of ensuring the security of valuable cargo being transported, employees of the cash-in-transit service shall have the right to use personal protective equipment, store and carry service firearms and ammunition thereof within the territory of a special economic zone, the boundaries of which fully or partially coincide with sections of the customs border of the Eurasian Economic Union, in accordance with the legislation of the Republic of Kazakhstan.

The passage of persons, vehicles, cargo and goods across the State Border is carried out by the Border Service of the National Security Committee of the Republic of Kazakhstan.

The passage of persons across the State Border is carried out upon presentation of documents granting the right to enter the Republic of Kazakhstan or leave the Republic of Kazakhstan, provided that there are no restrictions established by the laws of the Republic of Kazakhstan in respect of such persons.

The passage of vehicles, cargo and goods across the State Border is carried out upon the availability of authorization marks issued by the state revenue authorities and other supervisory authorities granting the right to import vehicles, cargo and goods into the Republic of Kazakhstan or export them from the Republic of Kazakhstan.

Passage across the State Border shall be considered completed upon completion of the border control procedure and when the person or vehicle leaves, or the cargo and goods are removed beyond, the boundaries of the crossing point, as well as any other location where passage across the State Border is carried out.

In accordance with the laws of the Republic of Kazakhstan, foreigners and stateless persons who have not been permitted to enter the Republic of Kazakhstan or whose entry is restricted, as well as persons in respect of whom a decision prohibiting departure from the Republic of Kazakhstan has been made, shall not be allowed to cross the State Border. Foreigners and stateless persons who have arrived at a crossing point or another location where passage across the State Border is carried out and who have no grounds for being admitted across the State Border shall, in accordance with the international treaties of the Republic of Kazakhstan, be returned to the country from which they arrived or to their country of citizenship.

The State Border shall be crossed: on land, on border rivers, lakes and other bodies of water — at the points where the State Border intersects international railway, road, river and other communication routes; in airspace — at the points where international air routes cross the State Border or through air corridors specially designated for these purposes; at sea — within the maritime corridors established along international maritime routes.

Crossing the State Border at other locations is permitted in cases provided for by the laws of the Republic of Kazakhstan and international treaties ratified by the Republic of Kazakhstan.

The Border Service of the National Security Committee of the Republic of Kazakhstan, when performing its duties related to the protection of the State Border, shall be granted the right to cross the State Border under a different procedure agreed upon with the border authority of the neighboring state (with the exception of the external boundary of the territorial waters (sea) in the Caspian Sea).

The procedure for crossing the State Border within the international center for cross-border cooperation with a neighboring state, as well as the procedure for persons staying within its territory, shall be regulated by international treaties ratified by the Republic of Kazakhstan and the legislation of the Republic of Kazakhstan.

The crossing of the State Border by a person travelling by rail shall not constitute entry into the Republic of Kazakhstan or departure from the Republic of Kazakhstan when travelling: from the territory of the Republic of Kazakhstan in transit through the territory of a foreign state to another part of the territory of the Republic of Kazakhstan; from the territory of a foreign state in transit through the territory of the Republic of Kazakhstan to another part of the territory of that same foreign state.

Border, customs and other types of control shall not be carried out in the aforementioned cases.

Ensuring the uninterrupted movement of railway vehicles and monitoring compliance with the prohibition on disembarking (boarding) passengers and unloading (loading) cargo and goods shall be the responsibility of the transport organization (carrier of passengers, cargo and goods).

For the purpose of localizing and eliminating natural and man-made emergency situations, the laws of the Republic of Kazakhstan and international treaties ratified by the Republic of Kazakhstan may provide for a different procedure for crossing the State Border by emergency rescue units.

The requirements for marking and equipping sections of international railway and road communication routes from the State Border to crossing points, the procedure for travelling along such routes, as well as the requirements for equipping the Kazakhstani section of the perimeter of an international center for cross-border cooperation located on the State Border, shall be established by the Government of the Republic of Kazakhstan.

When persons and vehicles travel from the State Border to crossing points and other locations where passage across the State Border is carried out, or in the opposite direction, the following shall be prohibited: changing the established route of movement; stopping, disembarking (boarding) persons, unloading (loading) cargo and goods, taking off into the air, landing or receiving any aircraft, including unmanned aerial vehicles.

In the interests of ensuring the national security of the Republic of Kazakhstan, as well as upon written requests from neighboring states, the Government of the Republic of Kazakhstan may temporarily restrict or suspend crossing of the State Border at certain sections thereof.

Notification of the temporary restriction or suspension of crossing the State Border shall be sent by the Ministry of Foreign Affairs of the Republic of Kazakhstan to the interested states through diplomatic channels within seventy-two hours from the moment such decision is adopted.

Illegal crossing of the State Border outside crossing points should be understood as the actual movement of a person across the State Border of the Republic of Kazakhstan by any means (including the use of transport), in any direction, beyond the boundaries of a railway or bus station, a seaport or river port, an international airport or aerodrome, as well as beyond the boundaries of another specially designated area of land located in the immediate vicinity of the State Border.

The basis for passage across the State Border is the possession of valid documents granting the right to enter and leave the country. Such documents include a citizen's passport; and a diplomatic passport issued by the Ministry of Foreign Affairs to citizens of Kazakhstan who enjoy diplomatic immunity, as well as to their family members.

Foreign citizens and stateless persons entering the Republic of Kazakhstan are required to present valid identity documents, valid documents recognized as such in Kazakhstan, and a visa issued by the relevant foreign diplomatic mission and consular institution.

Illegal crossing of the State Border of the Republic of Kazakhstan at the aforementioned crossing points using forged documents or through the fraudulent use of valid documents belonging to third parties should be understood as the actual movement of a person across the State Border of the Republic of Kazakhstan at a crossing point established by law, by any means, including the use of transport, using documents (passport, identity card, etc.) containing distorted information, completely forged documents, or documents belonging to other persons.

Violation of the established procedure for crossing the border should be understood as a violation of the legislation regulating matters relating to crossing the border of the Republic of Kazakhstan.

For the purpose of qualifying an act under this Article, the presence of just one of the elements constituting a violation of the border-crossing procedure is sufficient.

Article 18 of the Law “On the State Border of the Republic of Kazakhstan” establishes a number of circumstances in which forced crossing (outside designated locations, maritime or air corridors) does not constitute a violation of the procedure for crossing the State Border: a natural disaster, catastrophe, accident, emergency situation and other circumstances threatening the life or health of people, the safety of a Kazakhstani or foreign vessel, a foreign warship, an ice-going means of transport, as well as an aircraft; towing a damaged Kazakhstani or foreign vessel, a foreign warship, or an ice-going means of transport; delivery of rescued persons; provision of urgent medical assistance to a crew member or passengers of a Kazakhstani or foreign vessel, a foreign warship, or an ice-going means of transport.

It should be noted that, for citizens of Kazakhstan, the right to leave their country may be restricted: if they have been granted access to information of particular importance or top-secret information classified as state secrets, as well as in cases where a citizen has been called up for military service in accordance with the procedure established by law, detained on suspicion of committing a crime or charged as an accused; convicted of committing a crime or evading the fulfilment of an obligation imposed by a court; or has failed to fulfil tax payment obligations stipulated by law.

The elements of the crime provided for in Article 392 of the Criminal Code are formal in nature. The crime shall be considered completed from the moment the actions specified in the disposition of the Article under commentary are committed.

The subjective side of the crime under commentary is characterized by direct intent. The guilty person is aware that they are illegally crossing the State Border of the Republic of Kazakhstan and desires to do so.

The motive and purpose do not affect the legal qualification of the act but are taken into account by the court when imposing punishment.

The subject of the act under consideration is a sane individual who has reached the age of 16.

Part 2 of Article 392 of the Criminal Code provides for criminal liability, as a qualifying circumstance, for the same acts committed by a criminal group or involving the use of violence or the threat of its use.

The concept of a criminal group is provided in subparagraph 3) of Article 31 and Part 3 of Article 31 of the Criminal Code.

In this case, violence should be understood as any physical violence that has not resulted in the infliction of grievous bodily harm and is not dangerous to human life. Intentional infliction of moderate or minor bodily harm, beatings and torture are covered by the disposition of Part 2 of Article 392 of the Criminal Code and do not require additional qualification.

In the event of intentional infliction of grievous bodily harm or murder, the act should be qualified cumulatively under Article 392 and, respectively, Articles 99 and 106 of the Criminal Code. If the victim is a representative of authority (an employee of the border service, customs authorities or other bodies exercising special control powers when crossing the State Border), the act should be qualified under Part 2 of Article 380 and Part 2 of Article 392 of the Criminal Code.

The threat of violence shall be understood as statements, intimidation or other actions by the perpetrator expressing a real intention to use violence (cause death or bodily harm). In this case, the victim must perceive the threat as real.

For the purpose of qualifying the act, it does not matter whether the perpetrator intended to carry out the threat or not. Any type of threat to use violence is covered by Part 2 of Article 392 of the Criminal Code and does not require additional qualification under Article 115 of the Criminal Code, which provides for criminal liability for threats.

The act provided for in Part 1 of Article 392 of the Criminal Code belongs to the category of minor offences.

The act provided for in Part 2 of Article 392 of the Criminal Code belongs to the category of offences of medium gravity.

Commentary of 2021 on 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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