Commentary on Article 409. Threats or Acts of Violence in Connection with the Administration of Justice or Pre-Trial Investigation of the Criminal Code of the Republic of Kazakhstan

1. Threatening a judge, juror, or their close relatives with murder, causing harm to health, damaging or destroying property in connection with the consideration of cases or materials in court shall be punishable by a fine of up to three thousand monthly calculation indices, or corrective labor 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 same act committed against a prosecutor, a person conducting a pre-trial investigation, defense counsel, an expert, a court bailiff, a judicial enforcement officer, or their close relatives in connection with conducting a pre-trial investigation, considering a case or materials in court, or enforcing a sentence, court decision or other judicial act, shall be punishable by—

3. a fine 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 imprisonment for the same period.

4. The acts provided for in paragraphs one or two of this Article, committed with the use of violence that is not dangerous to life or health, shall be punishable by—

5. 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 imprisonment for the same period.

6. The acts provided for in paragraphs one or two of this Article, committed with the use of violence dangerous to life or health, shall be punishable by—

7. imprisonment for a period of five to ten years.

The public danger of this crime lies in the fact that its commission disrupts the normal activities of persons administering justice or conducting pre-trial investigations, creates an atmosphere of uncertainty regarding their own safety and the safety of their close relatives, as well as the security of their property, which may ultimately lead to the adoption of an unjust judicial decision.

The object of the crime is the normal functioning of the court and the pre-trial investigation body, i.e. the interests of justice. The additional objects are the health of the individual, the conditions ensuring the safety of the life and property relations of a judge, juror, person conducting a pre-trial investigation, defense counsel, expert, court bailiff, judicial enforcement officer, as well as their close relatives.

In cases involving damage to or destruction of property, a mandatory element is the subject matter of the crime, namely, the specific property belonging to the victims.

The victims are a judge, juror, prosecutor, person conducting a pre-trial investigation, defense counsel, expert, court bailiff, judicial enforcement officer, or their close relatives. The concepts of these persons are examined in detail in the analysis of Part 2 of Article 407 of the Criminal Code and Article 408 of the Criminal Code (see the commentary to Articles 407 and 408).

The objective aspect of the crime is expressed in threatening a judge, juror, or their close relatives with murder, causing harm to health, damaging or destroying property in connection with the consideration of cases or materials in court.

The concept of a “threat” is interpreted as intimidation or a promise to cause someone harm or evil. A threat is understood as psychological influence exerted on the victim for the purpose of changing their behavior in the interests of the person making the threat. The threat must be real and genuine. Only such a threat is capable of exerting a certain psychological impact on the victim with the aim of making them perform actions in favor of the perpetrator.

A threat should be understood not only as direct statements expressing an intention to immediately use physical violence against the victim or their close relatives, but also as threatening actions by the perpetrator, such as displaying a weapon or objects that may be used as weapons (a knife, an axe, etc.).

Unlike Article 115 of the Criminal Code, “Threat,” the disposition of which reads: “Threatening to kill or cause grievous bodily harm, as well as other serious violence against a person, or to destroy property by arson, explosion or other generally dangerous means, where there are sufficient grounds to fear that the threat will be carried out...”, the legislator has not specified the severity of the possible harm to health in the Article under consideration. This may include a threat to cause minor, moderate or grievous harm to health.

Furthermore, the legislator has not specified the elements of the “reality of the threat” in Article 409 of the Criminal Code, whereas Article 115 of the Criminal Code specifically emphasizes: “where there are sufficient grounds to fear that the threat will be carried out.” On the one hand, it may be concluded that the legislator adopted this approach because of the importance of the object of criminal law protection — the normal functioning of the court and other law enforcement agencies in ensuring the goals and objectives of justice in accordance with the law. Criminal liability is provided for regardless of whether the threat is real. The degree of reality of the threat does not affect the legal classification of the act and is taken into account when imposing punishment. On the other hand, how justified is this approach adopted by the legislator? Paragraph 1 of Article 1 of the Constitution of the Republic of Kazakhstan emphasizes: “The Republic of Kazakhstan proclaims itself a democratic, secular, legal and social state whose highest values are the individual, human life, rights and freedoms.” In this regard, we believe that this is an issue the legislator should give further consideration to.

A threat may be expressed in various forms: orally, in writing, or through non-verbal demonstration. A threat may be communicated personally or through third parties. However, in the latter case, it is necessary to establish that the person making the threat intended to bring it to the attention of the addressee.

A threat made publicly in the absence of the persons against whom it is directed does not constitute the elements of the crime under consideration.

The distinctive feature of a threat is that it is generally directed toward the future, meaning that the perpetrator expresses an intention to actually take the victim's life, cause harm to their health, damage or destroy their property only after a certain period of time, if their demands are not met. The immediate implementation of a threat transforms psychological violence into physical violence, and a threat to kill into murder (Article 99 of the Criminal Code), a threat to cause harm to health into intentional infliction of harm to health (Articles 106 and 107 of the Criminal Code), and a threat to damage or destroy property into intentional destruction of or damage to property (Article 202 of the Criminal Code).

For the elements of the crime under consideration to be present, a threat to commit any one of the acts specified in the law is sufficient.

For the elements of the crime under consideration to be established, the threat must be connected with the activities of the victim specified in the law, namely, the consideration of cases or materials in court. Such activities should be understood as the independent activities of the court in adjudicating cases in court. The substance of these activities is described in detail in Part 1 of Article 407 of the Criminal Code.

There must be a causal relationship between the victim's actions in administering justice and the threat directed against them. If the threat arose from personal relationships or was motivated by personal hostility, criminal liability under this Article is excluded.

A threat to commit other acts not specified in the disposition of Article 409 of the Criminal Code (for example, a threat to disseminate information discrediting the victim) does not constitute the elements of the crime under consideration. Where the necessary elements are present, such actions may be regarded as obstruction of the administration of justice and the conduct of a pre-trial investigation (Article 407 of the Criminal Code) or classified under Articles 412, 413, 414, 416 and 418 of the Criminal Code.

Destruction of property threatened against victims means rendering such property completely unfit for further use for its intended purpose, or placing it in such a condition that, although restoration is possible, it is economically impractical (damage means rendering property partially unfit for use, whereby it loses some of its consumer properties or its weight is reduced).

By its legal structure, the corpus delicti of this crime is formal. The crime is considered completed from the moment the threat is expressed, regardless of whether it was subsequently carried out or whether the perpetrator achieved the goal they had set. It is also irrelevant whether the perpetrator intended to carry out the threat in the future.

For the elements of the crime to be present in a person's actions, it does not matter at what stage of the consideration of cases or materials in court the acts were committed.

From the subjective aspect, the crime is committed only with direct intent. The perpetrator is aware that they are threatening a person with murder, causing harm to health, damaging or destroying property in connection with that person's administration of justice, and wishes to exert psychological pressure on them in order to induce or compel them to commit unlawful acts.

The motives for the crime may vary: revenge for the actions of a judge or juror participating in the administration of justice, the desire to obtain a favorable decision in a case from the aforementioned persons, etc.

The purpose is not an obligatory element of this crime.

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

Part 2 of the Article under consideration establishes criminal liability for the same act committed against a prosecutor, a person conducting a pre-trial investigation, defense counsel, expert, court bailiff, judicial enforcement officer, or their close relatives in connection with conducting a pre-trial investigation, considering a case or materials in court, or enforcing a sentence, court decision or other judicial act.

The objective aspect of threatening to kill, cause harm to health, damage or destroy property is similar to that provided for in Part 1 of the Article under consideration. It is mandatory that the perpetrator's threat to kill, cause harm to health, damage or destroy property be connected with conducting a pre-trial investigation, considering a case or materials in court, or enforcing a sentence, court decision or other judicial act. The concept of each of these types of activities is provided in the commentary to Article 408 of the Criminal Code.

From the subjective aspect, this crime is committed with direct intent. The perpetrator is aware that they are threatening a person with murder, causing harm to health, damaging or destroying property in connection with that person's conducting a pre-trial investigation, considering a case or materials in court, or enforcing a sentence, court decision or other judicial act, and wishes to exert psychological pressure on that person in order to induce or compel them to commit unlawful acts.

The motive and purpose of the crime do not affect its legal classification.

The subject of the crime provided for in Part 2 of Article 409 of the Criminal Code is a sane individual who has reached the age of 16.

The particularly qualifying elements provided for in the Article under consideration are the commission of the aforementioned acts with the use of violence that is not dangerous to life or health (Part 3), and the commission of these acts with the use of violence dangerous to life or health (Part 4).

Violence that is not dangerous to life or health is understood as physical violence expressed in beatings, blows, restriction or deprivation of liberty, infliction of minor harm to the victim's health, and other violent acts that have not caused substantial harm to health.

According to Paragraph 23 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated July 11, 2003, “On Judicial Practice in Cases of Theft,” violence dangerous to life or health should be understood as the infliction of harm to health through the use of weapons or objects used as weapons and adapted to cause harm to health, as well as other violence resulting in the infliction of grievous or moderate harm to the victim's health.

At the same time, minor harm may also be recognized as dangerous to the victim's life or health if it is inflicted under circumstances dangerous to the victim's life or health (for example, multiple kicks or punches to vital parts of the body, etc.) and requires outpatient or inpatient treatment for recovery.

Of particular importance for the correct classification of a crime under Parts 3 and 4 of the Article under consideration is establishing the extent of physical violence covered, without additional legal classification, by the relevant element of a specific corpus delicti, and determining when additional classification under the Articles concerning crimes against the person is required.

At present, the principal method of resolving this issue is to ensure that the severity of the specific sanctions is consistent, since the nature of the public danger of a criminal offense, the degree of importance of a particular object of criminal law protection, including the danger of the harm caused to it, are formally reflected in the sanction.

A complex violent crime is classified under a single Article (or Part of an Article) in cases where the sanction for such a crime is more severe than the sanctions provided for the use of physical violence under the relevant Articles of Chapter 1 of the Criminal Code of the Republic of Kazakhstan.

Taking the above into account, beatings, torture, and the infliction of minor, moderate and grievous harm to health (Part 1 of Article 106 of the Criminal Code) are fully covered by Parts 3 and 4 of Article 409 of the Criminal Code and do not require additional legal classification. Violence provided for in Parts 2 and 3 of Article 106 of the Criminal Code must be classified cumulatively with Part 4 of Article 409 of the Criminal Code.

The acts provided for in Parts 1 and 3 of Article 409 of the Criminal Code are classified as medium-gravity crimes.

The act provided for in Part 2 of Article 409 of the Criminal Code is classified as a minor crime.

The act provided for in Part 4 of Article 409 of the Criminal Code is classified as a serious crime.

**Commentary to the Criminal Code of the Republic of Kazakhstan, 2021, by Isidor Shamilovich Borchashvili, Honored Figure of Kazakhstan, Doctor of Law, Professor, Academician of the National Academy of Natural Sciences of Kazakhstan, 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 Worker of the Ministry of Internal Affairs of the Republic of Kazakhstan.

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