Commentary on Article 408. Encroachment on the Life of a Person Administering Justice or Conducting a Pre-Trial Investigation of the Criminal Code of the Republic of Kazakhstan

1. Encroachment on the life of a judge, juror, prosecutor, person conducting a pre-trial investigation, defence counsel, expert, court bailiff, judicial enforcement officer, as well as their close persons, in connection with the consideration of cases or materials in court, the conduct of a pre-trial investigation, or the execution of a sentence, court decision or other judicial act, committed for the purpose of obstructing the lawful activities of the aforementioned persons or out of revenge for such activities, —

shall be punishable by imprisonment for a term of fifteen to twenty years or life imprisonment.

The public danger of this crime lies in the fact that it infringes upon the normal functioning of the bodies and persons administering justice or conducting pre-trial investigations, as well as upon the lives of persons involved in the administration of justice and the conduct of pre-trial investigations, and their close persons.

The object of the crime is the social relations ensuring the normal functioning of the court in administering justice and of the bodies conducting pre-trial investigations. The additional object is the life of the person administering justice or conducting a pre-trial investigation, as well as the lives of their close persons.

The victims of this crime may include a judge, juror, prosecutor, investigator, inquiry officer (including in accordance with Article 61 of the CPC), defence counsel, expert, court bailiff, judicial enforcement officer, and close persons of the aforementioned individuals.

Paragraph 42) of Article 7 of the CPC states that a judge is a holder of judicial power; a professional judge appointed or elected to this position in accordance with the procedure established by law (the chairperson of a court, the chairperson of a judicial panel, or a judge of the relevant court). According to paragraph 47) of Article 7 of the CPC, an investigating judge is a judge of a court of first instance who exercises the powers provided for by the CPC during pre-trial proceedings.

According to paragraph 3) of Article 7 of the CPC, a juror is a citizen of the Republic of Kazakhstan summoned to participate in the consideration of a criminal case by a court in accordance with the procedure established by the CPC and who has taken an oath. Article 4 of the Law of the Republic of Kazakhstan dated 16 January 2006, “On Jurors,” stipulates that, for the purpose of ensuring the participation of citizens of the Republic of Kazakhstan in the process of selecting jurors, local executive bodies annually select candidates for jurors by 1 December of the preceding year and compile initial, unified and reserve lists of candidates for jurors.

The concepts of “prosecutor” and “person conducting a pre-trial investigation” are examined in detail in the analysis of the criminal offence provided for in Part 2 of Article 407 of the Criminal Code.

According to Part 1 of Article 66 of the CPC, a defence counsel is a person who, in accordance with the procedure established by law, provides protection of the rights and interests of a witness entitled to defence, a suspect, an accused person, a defendant, a convicted person or an acquitted person, and provides them with legal assistance during criminal proceedings.

In accordance with Part 1 of Article 79 of the CPC, an expert is a person possessing special scientific knowledge. Other requirements applicable to a person who may be entrusted with conducting an expert examination are established by Part 1 of Article 273 of the CPC.

According to paragraph 12) of Article 1 of the Law of the Republic of Kazakhstan dated 10 February 2017, “On Forensic Expert Activities,” a forensic expert is a person who has no interest in the case, possesses special scientific knowledge and meets other requirements established by law, and who has been entrusted with conducting a forensic examination.

In accordance with paragraph 1) of Article 1 of the Law of the Republic of Kazakhstan dated 7 July 1997, “On Court Bailiffs,” a court bailiff is an official holding public service and performing the duties assigned to them by this Law. Court bailiff units are established by the authorised state body responsible for the organisational and logistical support of the activities of the Supreme Court, local and other courts, within the Supreme Court and its territorial divisions (the Court Administration) in the regions, the capital and cities of republican significance.

Judicial enforcement officers, in accordance with paragraph 6) of Article 1 of the Law of the Republic of Kazakhstan dated 2 April 2010, “On Enforcement Proceedings and the Status of Judicial Enforcement Officers,” include state judicial enforcement officers and private judicial enforcement officers, who perform the functions assigned to them by law to take measures aimed at the compulsory enforcement of enforcement documents and have equal rights and obligations, subject to the exceptions provided for by the aforementioned Law.

According to paragraph 11) of Article 7 of the CPC, close relatives are parents, children, adoptive parents, adopted children, full and half-brothers and sisters, grandfathers, grandmothers and grandchildren.

Relatives, in accordance with paragraph 50) of Article 7 of the CPC, are persons related by kinship who share common ancestors up to the great-grandfather and great-grandmother.

Persons close to the victim, alongside close relatives and other relatives, also include other persons related to the victim by kinship or affinity (relatives of the spouse), as well as persons whose lives, health and well-being are known to the perpetrator to be dear to the victim due to established personal relationships. This is indicated in paragraph 6 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated 11 May 2007, “On the Qualification of Certain Crimes Against Human Life and Health,” according to which the term “close persons,” referred to in subparagraph 2) of Part 2 of Article 99 of the Criminal Code, includes not only close relatives specified in paragraph 11) of Article 7 of the CPC, but also other persons whom an individual engaged in official activities or performing a professional or public duty holds dear. In each case, it is necessary to establish that the perpetrator was knowingly aware of the close relationship between these persons.

The objective element of the crime under consideration consists of an encroachment on the life of the persons listed in the provision of the article. An encroachment on life means:

the murder of a person specified in the provision of the article, committed by any means. In this case, the crime has a material composition, for which an act, a consequence and a causal relationship between them are mandatory. The crime is considered completed from the moment biological death occurs;

an attempt to murder a person specified in the provision of the article. In this case, an act directly aimed at causing death is committed, but it is not brought to completion due to circumstances beyond the control of the perpetrator (Part 3 of Article 24 of the Criminal Code).

In criminal proceedings, a pre-trial investigation is understood as a stage of pre-trial proceedings intended to establish the circumstances of a crime and develop an evidentiary basis.

According to paragraph 41) of Article 7 of the CPC, pre-trial proceedings are proceedings in a case from the commencement of the pre-trial investigation until the criminal case is referred by the prosecutor to the court for consideration on the merits or until the proceedings in the case are terminated, as well as the preparation of materials in a criminal case by a private prosecutor and the defence.

The crime under consideration is committed in connection with: 1) the consideration of cases or materials in court; 2) the conduct of a pre-trial investigation; 3) the execution of a sentence, court decision or other judicial act.

Furthermore, the crime may occur both during the performance by the victim of activities arising from their official powers and in connection with such activities after a certain period of time. The time interval between the performance of professional activities and the encroachment on the victim's life does not affect the qualification of the crime.

Liability under Article 408 of the Criminal Code may also arise where these persons are no longer performing their official duties. In such cases, it is particularly important to establish the connection between the criminal conduct and the victim's previous activities in administering justice. For example, a person encroaches on the victim's life in an attempt to remove them from the consideration of a case, exert influence by encroaching on the lives of their close persons, or take revenge for a decision made.

For the purposes of bringing a person to criminal liability under Article 408 of the Criminal Code, it does not matter in which court or in what type of proceedings the case was considered (at first instance, on appeal or cassation, or with the participation of jurors). The place where the crime was committed is also irrelevant — whether in court, at home, in a public place, on the street, etc.

The activities in connection with which the encroachment on life is committed must be lawful, that is, based on statutory provisions and carried out in implementation of statutory provisions, as well as in accordance with the official powers of the victim.

In this regard, it is appropriate to cite the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated 11 May 2007, “On the Qualification of Certain Criminal Offences Against Human Life and Health.” Paragraph 6 of the aforementioned Resolution states: “When qualifying a murder under subparagraph 2) of Part 2 of Article 99 of the Criminal Code, it is necessary to establish which lawful actions of the victim, connected with the performance of official activities or the fulfilment of a professional or public duty, prompted the perpetrator to murder the victim or their close persons, since a mandatory condition for such qualification is the perpetrator's intent to encroach upon the life of that person precisely in connection with these circumstances.

In this regard, the performance of official activities should be understood as activities falling within the scope of a person's official duties, while the performance of a public duty should be understood as the fulfilment by any citizens of both specifically assigned public obligations and any other actions undertaken in the interests of society or individual persons (for example, preventing offences, reporting a planned or committed criminal offence, giving witness testimony, etc.). The performance of a professional duty should be understood as the commission by a person of actions connected with a particular profession (for example, an artist creating sketches, portraits or caricatures). In cases where the murder of a victim is committed in connection with the victim's unlawful official activities, qualification of the act under subparagraph 2) of Part 2 of Article 99 of the Criminal Code is excluded.

For the qualification of a murder committed in connection with the performance by the victim of official activities or their professional or public duty, it does not matter whether the murder was committed while the victim was performing the aforementioned actions or at another time.”

This position of the Supreme Court of the Republic of Kazakhstan is directly relevant to the analysis of the article under consideration.

Where an encroachment on life is committed in connection with unlawful activities, liability arises taking into account the circumstances of the case and subject to compliance with the provisions on necessary defence and the infliction of harm during the apprehension of a person who has committed an offence (Articles 32 and 33 of the Criminal Code).

An encroachment on the lives of the aforementioned victims that is not connected with their professional activities, but is motivated by personal reasons, is classified under the articles of the Criminal Code concerning criminal offences against the person.

Where an encroachment on the life of a person administering justice or conducting a pre-trial investigation is committed by means of an explosion, arson or other generally dangerous methods that do not pursue the specific objectives of an act of terrorism, the perpetrator's actions should be qualified under Article 408 of the Criminal Code (paragraph 4 of paragraph 15 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated 8 December 2017, “On Certain Issues of Judicial Practice in the Application of Legislation on Terrorist and Extremist Crimes”). The term “encroachment on life” is used in Part 4 of Article 255, Articles 177, 178, 380-1 and 408, and Part 4 of Article 429 of the Criminal Code and has the same meaning.

An encroachment on the lives of the persons listed in the provision of the article of the Criminal Code under consideration, as well as their close persons, must be qualified under Article 408 of the Criminal Code regardless of whether the victim died or death did not occur due to circumstances beyond the perpetrator's control. By its legal structure, the corpus delicti is an abbreviated (truncated) composition. The crime is considered completed from the moment of the encroachment on the life of a person specified in the provision of Article 408 of the Criminal Code; therefore, when qualifying such actions, no reference to Article 24 of the Criminal Code, “Preparation for a Crime and Attempted Crime,” is required.

From the subjective standpoint, the crime under consideration is committed with direct intent. In the case of murder, the perpetrator is aware of the socially dangerous nature of their actions, foresees the possibility or inevitability of the victim's death and desires its occurrence.

A mandatory element of the subjective side is the purpose of the crime — obstructing the lawful activities of the victim. This purpose is achieved by causing the victim's death and, at the same time, intimidating other participants in the proceedings.

The motive is revenge against the victim for their lawful activities in connection with the consideration of cases or materials in court, the conduct of a pre-trial investigation, or the execution of a sentence, court decision or other judicial act.

The absence of the purpose or motive specified in the law excludes liability under Article 408 of the Criminal Code. In such a case, where the necessary elements are present, the act may be qualified under the relevant articles of the Criminal Code establishing liability for criminal offences against the person or criminal offences against the order of governance.

The subject of the crime is a sane individual who has reached the age of 16.

For the differences between Article 408 of the Criminal Code and Article 380-1 of the Criminal Code, see the commentary to Article 380-1.

The act provided for in Article 408 of the Criminal Code is classified as a particularly serious crime.

Commentary of 2021 on the Criminal Code of the Republic of Kazakhstan, by Isidor Shamilovich Borchashvili, Honoured Figure of Kazakhstan, Doctor of Law, Professor, Academician of the Kazakhstan National Academy of Natural Sciences, member of the Scientific Advisory Councils under the Constitutional Council of the Republic of Kazakhstan and the Supreme Court of the Republic of Kazakhstan, member of the working group on 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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