Commentary on Article 394. Organization of Illegal Migration of the Criminal Code of the Republic of Kazakhstan

1. Organization of illegal migration by providing vehicles or forged documents, or residential or other premises, as well as by rendering other services to citizens, foreigners and stateless persons for the purpose of their illegal entry into, exit from, or movement within the territory of the Republic of Kazakhstan —

shall be punishable by a fine in an amount of up to two thousand monthly calculation indices, or corrective labor in the same amount, or community service for a period of up to six hundred hours, or restriction of liberty for a period of up to two years, or deprivation of liberty for the same period.

2. The same act committed by a person using his or her official powers, or by a group of persons acting upon prior conspiracy —

shall be punishable by a fine in an amount of up to five thousand monthly calculation indices, or corrective labor in the same amount, or community service for a period of up to one thousand two hundred hours, or restriction of liberty for a period of up to five years, or deprivation of liberty for the same period, with deprivation of the right to hold certain positions or engage in certain activities for a period of up to three years or without such deprivation.

3. An act provided for in Part One of this Article, committed by a criminal group —

shall be punishable by deprivation of liberty for a period of three to seven years.

Pursuant to Subparagraph 9) of Article 1 of the Law of the Republic of Kazakhstan dated July 22, 2011, “On Population Migration,” migration means the permanent or temporary, voluntary or forced movement of individuals from one state to another, as well as within a state.

The principal regulatory legal acts governing the legal framework of migration in the Republic of Kazakhstan and regulating relations in the field of migration include: the Law of the Republic of Kazakhstan dated June 19, 1995, “On the Legal Status of Foreigners”; the Law of the Republic of Kazakhstan dated December 13, 2000, “On Ratification of the Agreement on Cooperation between the Member States of the Commonwealth of Independent States in Combating Illegal Migration”; the Resolution of the Government of the Republic of Kazakhstan dated January 21, 2012, “On Approval of the Rules for Entry and Stay of Immigrants in the Republic of Kazakhstan, as well as Their Departure from the Republic of Kazakhstan, and the Rules for Exercising Migration Control, as well as Registration of Foreigners and Stateless Persons Illegally Crossing the State Border of the Republic of Kazakhstan, Illegally Staying in the Territory of the Republic of Kazakhstan, as well as Persons Prohibited from Entering the Territory of the Republic of Kazakhstan”; the Resolution of the Government of the Republic of Kazakhstan dated September 5, 2000, “On the Concept of the Migration Policy of the Republic of Kazakhstan”; international agreements and others.

The public danger of the crime provided for in Article 394 of the Criminal Code lies in the fact that the organization of illegal migration results in violations of the established rules in the field of population migration and the legal, economic and social foundations of migration processes in Kazakhstan. Illegal migration may pose a threat to national security and give rise to such problems as the development of the shadow economy, ethnic conflicts, armed attacks and terrorist acts.

The object of the crime under consideration is public relations in the field of population migration, in particular, public relations governing the established procedure for crossing the State Border of the Republic of Kazakhstan and the procedure for movement within its territory.

The objective element of the crime provided for in Article 394 of the Criminal Code consists in organizing illegal migration by providing vehicles or forged documents, or residential or other premises, as well as by rendering other services to citizens, foreigners and stateless persons for the purpose of their illegal entry into, exit from, or movement within the territory of the Republic of Kazakhstan.

Pursuant to the Law of the Republic of Kazakhstan dated December 20, 1991, “On Citizenship of the Republic of Kazakhstan,” citizens of the Republic of Kazakhstan are persons who: permanently reside in the Republic of Kazakhstan; were born in the territory of the Republic of Kazakhstan and do not hold the citizenship of a foreign state; or acquired citizenship of the Republic of Kazakhstan in accordance with the legislation of the Republic of Kazakhstan.

Citizenship of another state is not recognized for a citizen of the Republic of Kazakhstan.

In accordance with the Law of the Republic of Kazakhstan dated June 19, 1995, “On the Legal Status of Foreigners,” foreigners in the Republic of Kazakhstan are persons who are not citizens of the Republic of Kazakhstan and have evidence confirming their affiliation with the citizenship of another state.

Stateless persons are persons who are not citizens of the Republic of Kazakhstan and have no evidence confirming their affiliation with the citizenship of another state.

The organization of illegal migration is an activity as a result of which the possibility is created or the movement of individuals from one state to another, as well as within a state, is carried out in violation of the requirements of migration legislation based on the Constitution and arising from the Law of the Republic of Kazakhstan “On Population Migration” and other regulatory legal acts.

Organizational activities may be aimed at ensuring the entry into the Republic of Kazakhstan of migrants in violation of the legally established obligation to obtain and complete a migration card, without visas or identity documents, or by presenting forged documents; their stay in Kazakhstan in violation of the established registration procedure; their movement after the expiration of the period of stay; and other similar actions.

The concepts of “transport” and “vehicle” are contained in the Law of the Republic of Kazakhstan dated September 21, 1994, “On Transport in the Republic of Kazakhstan,” and in Subparagraph 28) of Article 1 of the Law of the Republic of Kazakhstan “On Road Traffic,” respectively.

To provide a vehicle means to make it possible to operate a vehicle involving its movement within the boundaries of roads, as well as on adjacent territories intended for the movement of vehicles or, depending on the type of vehicle, within railway tracks, water and air space.

Within the framework of the Article under consideration, the provision of vehicles should be understood as making vehicles available to citizens of Kazakhstan, foreigners and stateless persons by any unlawful means, that is, by means that violate or do not comply with the law.

A document is considered forged if the information contained therein does not correspond to reality. Forgery may be carried out in two ways: falsification and the production of an entirely forged document. The method of falsification may be material, when amendments distorting the content of an authentic document are introduced into it (erasure, additions, pasting, chemical removal, correction of text, replacement of text with another text, alteration of the date or surname, forgery of a signature, seal impression, and so forth), that is, when changes are made to the original text of the authentic document; and intellectual, when false information is indicated in a document that is authentic in form and complies with the applicable requirements.

Within the framework of the Article under consideration, documents should include: passports, diplomatic, service and foreign passports, identity cards, stateless person identity documents, refugee certificates, seafarer's identity documents of the Republic of Kazakhstan, return certificates, birth certificates, other personal documents issued by state authorities and containing biographical information for identifying their holders, as well as documents recognized in the Republic of Kazakhstan that certify the identity of foreign citizens and stateless persons (visa, residence permit, and so forth).

Thus, the provision of forged documents means issuing fictitious documents to citizens of the Republic of Kazakhstan, foreigners or stateless persons so that they may obtain the opportunity to enter, exit or move within the territory of the Republic of Kazakhstan without hindrance.

The concepts and characteristics of premises and residential premises are contained in the Law of the Republic of Kazakhstan dated April 16, 1997, “On Housing Relations.”

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

A residential premises (dwelling), pursuant to Subparagraph 28) of Article 2 of the Law of the Republic of Kazakhstan “On Housing Relations,” means a residential unit (an individual residential house, apartment or room in a dormitory) intended and used for permanent residence and complying with the established construction, sanitary, environmental, fire safety and other mandatory standards and regulations.

According to the above-mentioned Law, non-residential premises mean a separate interior space in a multi-apartment residential building that complies with construction, sanitary, environmental, fire safety and other mandatory standards and regulations, is provided for at the design stage, and whose boundaries are the internal surfaces of the walls, floor and ceiling (inter-floor slabs), unless otherwise provided for by the legislation of the Republic of Kazakhstan; is used for purposes other than permanent residence (an office, shop, café, hotel, hostel and other public service facilities); and is privately owned (separately owned), excluding the common property of the condominium facility. A parking facility is also classified as non-residential premises.

In addition, premises may include industrial, commercial and utility premises, offices, public catering facilities, medical facilities, pharmacies, property complexes intended for medical practice, including relevant polyclinics and medical offices, educational, theatrical and entertainment, sports, creative and multifunctional establishments, such as nightclubs, casinos, gaming halls, entertainment centers, garages, archives, agencies, communication offices and others.

Consequently, providing residential or other premises means making separate premises available for use and providing citizens of the Republic of Kazakhstan, foreigners and stateless persons with such premises.

The provision of other services for the purpose of illegal entry into, exit from, or movement within the territory of Kazakhstan should be understood as the use of any methods of organizing illegal migration. Such activities may consist in establishing a group engaged in facilitating illegal migration; developing methods and routes for illegal entry into, exit from, and movement within the territory of the Republic of Kazakhstan; identifying persons wishing to migrate illegally; providing them with the relevant documents; establishing unlawful contacts with persons exercising control over the procedure for entry, exit and movement within the country and those involved in issuing visas; and committing other actions aimed at facilitating the illegal entry into, exit from, and movement within the territory of the Republic of Kazakhstan of citizens of the Republic of Kazakhstan, foreigners and stateless persons.

Migrant workers from the member states of the Eurasian Economic Union and members of their families enter the Republic of Kazakhstan without visas and also stay in and leave the Republic of Kazakhstan without visas during the period of their registration.

Foreigners sentenced to deprivation of liberty by judgments of the courts of the Republic of Kazakhstan stay in the Republic of Kazakhstan without visas and registration.

Foreigners conditionally sentenced by judgments of the courts of the Republic of Kazakhstan to penalties not involving isolation from society, as well as those conditionally released before the expiration of their sentences, stay in the Republic of Kazakhstan without visas during the period of their registration. For departure from the Republic of Kazakhstan, they are issued a visa of the appropriate category.

Immigrants may move freely within the territory of the Republic of Kazakhstan that is open to foreign visitors and choose their place of residence in accordance with the procedure established by the legislation of the Republic of Kazakhstan in the field of population migration. Restrictions on movement and the choice of place of residence are established by the Government of the Republic of Kazakhstan pursuant to Subparagraph 7) of Article 7 of the Law of the Republic of Kazakhstan “On State Secrets.”

The procedure for the movement of foreigners within the Republic of Kazakhstan, as well as their entry into certain localities (territories) closed to foreign visitors, is determined by the Ministry of Internal Affairs of the Republic of Kazakhstan in coordination with the National Security Committee of the Republic of Kazakhstan.

Transit visas of the Republic of Kazakhstan are issued for the entry into and departure from the Republic of Kazakhstan of immigrants travelling in transit through the territory of the Republic of Kazakhstan.

Transit passage of foreigners through the territory of the Republic of Kazakhstan is permitted for a period not exceeding five days, provided that they possess documents (visas) valid for entry into a third country.

Foreigners travelling in transit through the territory of the Republic of Kazakhstan to a country with which the state of their citizenship has an agreement on visa-free entry are required to obtain a transit visa of the Republic of Kazakhstan.

By its legal structure, the composition of the crime under consideration is formal; therefore, the mere fact of organizing illegal migration is sufficient to bring a person to criminal liability. The act is considered completed from the moment any of the actions listed in the disposition of the Article is committed.

The subjective element of the crime under consideration is characterized by direct intent. The perpetrator is aware that he or she is committing actions aimed at organizing illegal migration and wishes to commit them.

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

The subject of the act under analysis is a sane individual who has attained the age of sixteen.

Part 2 of Article 394 of the Criminal Code provides for the organization of illegal migration by providing vehicles or forged documents, or residential or other premises, as well as by rendering other services to citizens, foreigners and stateless persons for the purpose of their illegal entry into, exit from, or movement within the territory of the Republic of Kazakhstan, committed by a person using his or her official powers or by a group of persons acting upon prior conspiracy, as an aggravating qualifying circumstance.

Official powers are the rights and duties vested in a person by law by virtue of the position held. The use by a person of his or her official powers means the unlawful commission, contrary to the interests of the service, of actions falling within the scope of his or her official duties, or the failure to perform actions that the person is obliged to perform by virtue of the position held.

Thus, the use by a person of his or her official powers should be understood as the application, for criminal purposes, of the scope of powers granted to the person in connection with the performance of certain functions, in order to facilitate the commission of a crime.

The qualifying circumstance of “commission of a crime by a group of persons upon prior conspiracy” is explained in the analysis of Part 2 of Article 385 of the Criminal Code.

Part 3 of the Article under consideration provides for liability for organizing illegal migration by providing vehicles or forged documents, or residential or other premises, as well as by rendering other services to citizens, foreigners and stateless persons for the purpose of their illegal entry into, exit from, or movement within the territory of the Republic of Kazakhstan, where such an act is committed by a group of persons upon prior conspiracy or by a criminal group.

The concept of a criminal group is provided in Subparagraph 24) of Article 3 and Part 3 of Article 31 of the Criminal Code.

The act provided for in Part 1 of Article 394 of the Criminal Code is classified as a criminal offense of minor gravity.

The act provided for in Part 2 of Article 394 of the Criminal Code is classified as a crime of medium gravity.

The act provided for in Part 3 of Article 394 of the Criminal Code is classified as a serious crime.

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, and Honored Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.

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