Commentary on Article 412-1. Provocation of a Crime of the Criminal Code of the Republic of Kazakhstan
1. Provocation of a crime, that is, unlawful actions by an official engaged in operational-search activities or pre-trial investigation, who induces a person to commit a crime for the purpose of subsequently exposing that person and bringing them to criminal liability or blackmailing them, —
shall be punishable by imprisonment for a term of three to five years, with deprivation of the right to hold certain positions or engage in certain activities for a term of up to seven years.
2. The same act, accompanied by violence or the threat of violence, destruction of or damage to property, or the use of the person's material or other dependence, —
shall be punishable by imprisonment for a term of five to ten years, with deprivation of the right to hold certain positions or engage in certain activities for a term of up to ten years.
3. The acts provided for in Parts One or Two of this Article:
1) which have resulted in the commission by a person of a serious or especially serious crime or the occurrence of other grave consequences;
2) committed in the interests of a criminal group, —
shall be punishable by imprisonment for a term of ten to twelve years, with deprivation of the right to hold certain positions or engage in certain activities for a term of ten years.
The public danger of this crime lies in the fact that it encroaches upon the proper functioning of bodies that assist the court in the administration of justice, as well as infringes upon an individual's right to protection against unfounded accusations and convictions.
It should be noted that, pursuant to the Law of the Republic of Kazakhstan dated October 6, 2020, “On Amendments and Additions to Certain Legislative Acts of the Republic of Kazakhstan on Anti-Corruption Issues,” Chapter 17 of the Criminal Code was supplemented with a new Article 412-1 of the Criminal Code.
The introduction of this provision into the Criminal Code was prompted by the need to strengthen the protection of the constitutional rights of individuals and citizens against unlawful actions by law enforcement officers.
The object of the crime is the proper functioning of bodies conducting operational-search activities or pre-trial investigations. The additional object is the rights, freedoms and legitimate interests of the person subjected to provocation.
The objective element of the offence is expressed in the provocation of a crime, that is, the commission of unlawful actions by an official engaged in operational-search activities or pre-trial investigation, who induces a person to commit a crime.
Inducement means any intentional actions carried out through persuasion, proposals, advice, misleading, deception, threats, etc., aimed at arousing in a person the desire to commit a crime.
According to Part 2 of Article 10 of the Criminal Code, a crime is a culpably committed socially dangerous act (action or omission) prohibited by the Criminal Code under threat of punishment in the form of a fine, correctional labour, community service, restriction of liberty, imprisonment or the death penalty.
At the same time, for criminal liability under Article 412-1 of the Criminal Code to arise, it is irrelevant whether the person being induced has previously committed criminal acts.
By its legal structure, the composition of this crime is formal. The crime shall be considered completed from the moment a person forms the resolve to commit a crime, regardless of whether the person being induced actually commits it or whether the criminal act does not take place for any reason (the subsequent refusal of the person being induced to commit the crime, intervention by other persons, exposure of the criminal plan, etc.).
It should be noted that Article 412-1 of the Criminal Code, “Provocation of a Crime,” is a general provision in relation to the special provision — Article 417 of the Criminal Code, “Provocation of Commercial Bribery or Bribery.”
In this regard, the requirements of Part 3 of Article 13 of the Criminal Code, “Multiplicity of Criminal Offences,” should be followed. According to this provision, where one and the same act falls within the elements of both a general and a special provision of the relevant articles of the Criminal Code, there is no concurrence of criminal offences, and criminal liability arises under the article of the Special Part of the Criminal Code containing the special provision.
Therefore, if a person induces another person to commit commercial bribery or bribery, then, provided that the other elements are present, their actions shall be classified under Article 417 of the Criminal Code, whereas inducement to commit other crimes shall be classified under Article 412-1 of the Criminal Code.
Furthermore, based on the wording of the disposition of Article 412-1 of the Criminal Code, inducing a person to commit a criminal misdemeanour, an administrative offence or a disciplinary offence does not constitute the elements of the crime under consideration.
The subjective element of the crime under consideration is characterised by guilt in the form of direct intent. The person is aware of the socially dangerous nature of the provocation being committed, understands that the person being induced is unaware of these actions, foresees and desires to induce that person to commit a crime.
A specific feature of the subjective element is the special purpose — exposing the person being induced and bringing them to criminal liability, or blackmailing them.
Exposure and bringing to criminal liability mean the intentional creation of factual data for use as evidence that the person being induced has committed a crime, and for the application to that person of restrictive measures and types of punishment established by criminal legislation.
Blackmail means intimidating the person being induced with exposure for having committed a crime in order to achieve the desired result.
The motives for the crime may vary: artificially improving official performance indicators, revenge, envy, greed, the desire to get rid of a demanding and honest person, etc. They do not affect the legal classification of the offence but may be taken into account by the court when imposing a sentence.
Provocation of a crime must be distinguished from the conduct of operational-search activities and pre-trial investigations.
According to subparagraph 15) of Article 1 of the Law of the Republic of Kazakhstan dated September 15, 1994, “On Operational-Search Activities,” operational-search activities are a scientifically substantiated system of overt and covert operational-search, organisational and managerial measures carried out in accordance with the Constitution of the Republic of Kazakhstan, this Law and other regulatory legal acts of the Republic of Kazakhstan by bodies authorised to conduct operational-search activities, for the purpose of protecting the life, health, rights, freedoms and legitimate interests of individuals and citizens, property, and ensuring the security of society and the state against criminal encroachments.
As stated in paragraph 9-4 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated May 14, 1998, “On the Application of Legislation in Cases Related to the Illegal Trafficking of Narcotic Drugs, Psychotropic Substances, Their Analogues and Precursors,” when conducting operational-search measures, it is prohibited to induce or provoke citizens to commit offences.
In accordance with subparagraph 22) of Article 7 of the Criminal Procedure Code, criminal prosecution (accusation) is procedural activity carried out by the prosecution party for the purpose of establishing an act prohibited by criminal law and the person who committed it, establishing the latter's guilt in committing a criminal offence, as well as ensuring the application of punishment or other measures of criminal-law influence to such person.
In this regard, the provocation of a crime is committed not for the purpose of achieving the objectives established by the Criminal Procedure Code and legislation on operational-search activities, but for the purpose of achieving the objectives specified in the disposition of Article 412-1 of the Criminal Code.
The subject of this crime is a special subject: a sane natural person who has reached the age of 16 and is an official engaged in operational-search activities or pre-trial investigation.
According to Article 6 of the Law of the Republic of Kazakhstan “On Operational-Search Activities,” the bodies conducting operational-search activities include:
- internal affairs bodies;
- national security bodies;
- the authorised body in the field of foreign intelligence;
- military intelligence bodies of the Ministry of Defence;
- the Anti-Corruption Service;
- the State Security Service of the Republic of Kazakhstan;
- the Economic Investigation Service.
Based on subparagraph 23) of Article 7 of the Criminal Procedure Code, the bodies (officials) of criminal prosecution include the prosecutor (public prosecutor), investigator, body of inquiry and interrogating officer.
Part 2 of Article 412-1 of the Criminal Code provides for liability for the provocation of a crime accompanied by violence or the threat of violence, destruction of or damage to property, or the use of the person's material or other dependence.
Violence means physical violence expressed in the infliction of beatings, torture, minor bodily harm, bodily harm of moderate severity or grievous bodily harm upon the victim.
At the same time, the infliction of grievous bodily harm, where qualifying circumstances are present, is not covered by Part 2 of Article 412-1 of the Criminal Code and requires additional classification under Part 2 of Article 106 of the Criminal Code.
The threat of violence is expressed in the perpetrator making threats to cause harm to the health of the victim, their relatives and close persons, etc. At the same time, the threat must be real and genuine in order to be recognised as criminal conduct.
The characteristics of a threat are disclosed in greater detail in the commentary to Article 409 of the Criminal Code.
Destruction of property means rendering it completely unfit for further use for its intended purpose, or placing it in such a condition that its restoration is possible but economically impractical.
Damage to property means rendering property partially unfit for use, whereby it loses some of its consumer properties, or reducing its mass.
Material or other dependence presupposes that the person being induced, due to various circumstances (illness, a difficult life situation, etc.), is in need of support from the perpetrator but does not receive such support.
Part 3 of Article 412-1 of the Criminal Code establishes liability for the provocation of a crime:
- which has resulted in the commission by a person of a serious or especially serious crime or the occurrence of other grave consequences;
- committed in the interests of a criminal group.
The concepts of serious and especially serious crimes are set out in Parts 4 and 5 of Article 11 of the Criminal Code.
Grave consequences include the following: the death of one person; the death of two or more persons; suicide by the victim or their close relative(s); mass illness, infection, irradiation or poisoning of people; deterioration in the health of the population and the environment; an unwanted pregnancy; the occurrence of a man-made or environmental disaster, or an environmental emergency; the infliction of major or especially large-scale damage; the creation of a threat to state security, a catastrophe or an accident; and other consequences indicating the severity of the harm caused.
As specified in subparagraph 24) of Article 3 of the Criminal Code, a criminal group means an organised group, criminal organisation, criminal community, transnational organised group, transnational criminal organisation, transnational criminal community, terrorist group, extremist group, gang or illegal paramilitary formation.
For the actions of the perpetrator to be classified under Part 3 of Article 412-1 of the Criminal Code, the provocation of the crime must have been committed in the interests of any of the above-mentioned types of criminal groups.
The act provided for in Part 1 of Article 412-1 of the Criminal Code is classified as a crime of medium gravity.
The acts provided for in Parts 2 and 3 of Article 412-1 of the Criminal Code are classified as serious crimes.
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 reform of the law enforcement system under the Security Council of the Republic of Kazakhstan, Honoured Worker of the Ministry of Internal Affairs of the Republic of Kazakhstan.
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