Commentary on Article 396. Unlawful Alteration of the State Border of the Republic of Kazakhstan of the Criminal Code of the Republic of Kazakhstan
1. The removal, relocation or destruction of border markers for the purpose of unlawfully altering the State Border of the Republic of Kazakhstan —
shall be punishable by a fine in an amount of up to two thousand monthly calculation indices, or corrective labour 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 imprisonment for the same period.
2. The same acts, if committed repeatedly or resulting in grave consequences, —
shall be punishable by a fine in an amount of up to four thousand monthly calculation indices, or corrective labour in the same amount, or community service for a period of up to one thousand hours, or restriction of liberty for a period of up to four years, or imprisonment for the same period.
The public danger of the crime provided for in Article 396 of the Criminal Code lies in the fact that it encroaches upon the inviolability of the State Border and violates public relations ensuring the security and established regime of the State Border of the Republic of Kazakhstan.
The object of the crime is public relations establishing the procedure for protecting the State Border of the Republic of Kazakhstan in the interests of its inviolability, as well as the territorial integrity of the state.
The subject matter of this crime is border markers.
In accordance with Paragraph 1 of the Resolution of the Government of the Republic of Kazakhstan dated November 8, 2013, “On Approval of the Forms, Dimensions, Description, Designs and Rules for the Installation of Border Markers,” border markers are intended to determine the line of the State Border of the Republic of Kazakhstan on the ground or on either side of the State Border. Their geographical coordinates are determined and recorded in demarcation documents or documents relating to joint inspections. Border markers are divided into main and intermediate markers.
A main border marker consists of one, two or three main border posts and one central border post, depending on the international treaties ratified by the Republic of Kazakhstan, as well as the physical and geographical characteristics of the terrain.
Intermediate border markers consist of one border post and are installed directly on the line of the State Border.
According to Subparagraph 25) of Article 1 of the Law of the Republic of Kazakhstan “On the State Border of the Republic of Kazakhstan,” demarcation is the determination and marking of the State Border on the ground, formalized by an international treaty ratified by the Republic of Kazakhstan.
Thus, border markers should be understood as special objects intended to indicate the state border on the ground (for example, border posts, border pyramids and buoys).
The forms, dimensions, description, designs and rules for the installation of border markers are determined by the Resolution of the Government of the Republic of Kazakhstan “On Approval of the Forms, Dimensions, Description, Designs and Rules for the Installation of Border Markers.”
The objective element of the crime provided for in Article 396 of the Criminal Code consists in the removal, relocation or destruction of border markers for the purpose of unlawfully altering the State Border of the Republic of Kazakhstan.
According to Article 10 of the Law of the Republic of Kazakhstan “On the State Border of the Republic of Kazakhstan,” the State Border on the ground is marked with clearly visible border markers in accordance with the demarcation.
To relocate means to place or move something to another location. Consequently, the relocation of border markers means the unauthorized installation of border markers in other locations rather than on the line of the State Border, in violation of the procedure established by international treaties and national legislation.
To destroy means to bring something to an end or eliminate it. Accordingly, the destruction of border markers means their complete elimination.
By its legal structure, the corpus delicti is formal. The crime shall be considered completed from the moment the border markers are removed, relocated or destroyed, that is, from the moment one of the actions specified in the disposition of the Article is committed.
The subjective element of the crime is expressed in the form of direct intent. The perpetrator is aware that they are removing, relocating or destroying border markers of the State Border of the Republic of Kazakhstan and desires to do so.
The motive, in relation to the corpus delicti under consideration, is an optional element of the subjective aspect. Accordingly, it does not affect the legal classification of the crime. Motives may vary and must be taken into account when imposing punishment.
An obligatory element of the subjective aspect is the special purpose of unlawfully altering the State Border of the Republic of Kazakhstan. Unlawful alteration should be understood as both an increase and a reduction in the territory of the state.
The subject of the crime is a sane natural person who has attained the age of 16.
Part 2 of Article 396 of the Criminal Code provides for liability for the removal, relocation or destruction of border markers for the purpose of unlawfully altering the State Border of the Republic of Kazakhstan, where such acts are committed repeatedly or result in grave consequences.
According to Article 12 of the Criminal Code, repetition is defined as the commission of two or more acts provided for by the same Article or the same part of an Article of the Special Part of the Criminal Code.
In accordance with the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated December 25, 2006, “On the Classification of Repetition and Aggregation of Criminal Offences,” repetition 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.
Within the framework of the Article under consideration, repetition should be understood as the removal, relocation or destruction of border markers for the purpose of unlawfully altering the State Border of the Republic of Kazakhstan, committed by a person two or more times.
At the same time, a criminal offence shall not be considered repeated if the person was convicted of the previously committed criminal offence or released from criminal liability on lawful grounds. Accordingly, the element of repetition shall not be present in the actions of a person who was previously held criminally liable for unlawfully altering the State Border of the Republic of Kazakhstan or released from such liability on lawful grounds.
Unlike Part 1 of Article 396 of the Criminal Code, Part 2 of the provision under consideration establishes liability for the removal, relocation or destruction of border markers for the purpose of unlawfully altering the State Border of the Republic of Kazakhstan, where such acts result in grave consequences. Thus, in terms of the structure of its objective element, the corpus delicti provided for in Part 2 of Article 396 of the Criminal Code belongs to the category of material offences.
The concept of “grave consequences” is defined in Subparagraph 4) of Article 3 of the Criminal Code of the Republic of Kazakhstan.
The act provided for in Part 1 of Article 396 of the Criminal Code is classified as a minor crime.
The act provided for in Part 2 of Article 396 of the Criminal Code is classified as a crime of medium gravity.
2021 Commentary 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 the 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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