Commentary on Article 429 of the Criminal Code of the Republic of Kazakhstan. Threatening to Use Violence Against an Employee of an Institution Ensuring Isolation from Society or Their Close Relatives, as Well as Against a Convicted Person, or Encroaching Upon Their Health or Life

1. Threatening to use violence against an employee of an institution ensuring isolation from society, or against their spouse or close relatives, in connection with the performance of their official duties, as well as against a convicted person for the purpose of obstructing their rehabilitation or out of revenge for the assistance they provided to the administration of the institution —

shall be punishable by imprisonment for a term of two to five years.

2. The use of violence that is not dangerous to life or health against the persons specified in the first part of this Article —

shall be punishable by imprisonment for a term of three to seven years.

3. The acts provided for in Parts One and Two of this Article, committed by a group of persons upon prior conspiracy or involving the use of violence dangerous to life or health —

shall be punishable by imprisonment for a term of seven to ten years.

4. Encroachment upon the life of an employee of an institution ensuring isolation from society, or upon the life of their spouse or close relatives, in connection with the performance of their official duties, as well as encroachment upon the life of a convicted person for the purpose of obstructing their rehabilitation or out of revenge for the assistance they provided to the administration of the institution —

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

The public danger of this crime lies in the threat of violence against an employee of an institution ensuring isolation from society, or against their spouse or close relatives, as well as against a convicted person, or in the encroachment upon their health or life. Such actions may also pursue the objective of subordinating convicted persons to dangerous criminals and preventing their rehabilitation.

The object of the crime under consideration is public order in the sphere of activity of institutions ensuring isolation from society. An additional object is the health of the institution employee, their spouse or close relatives, and convicted persons.

The objective element of the crime consists in threatening to use violence against an employee of an institution ensuring isolation from society, or against their spouse or close relatives, in connection with the performance of their official duties, as well as against a convicted person for the purpose of obstructing their rehabilitation or out of revenge for the assistance they provided to the administration of the institution.

A threat is one of the forms of violence commonly referred to as psychological violence. With regard to Part 1 of Article 429 of the Criminal Code, this may be expressed in the perpetrator threatening to cause harm to the victim's health. The threat must be real and genuine in order for it to be recognized as criminal conduct. Furthermore, the means and instruments used by the perpetrator, as well as the circumstances in which the crime was committed, must indicate the perpetrator's actual intention to carry out the threat. Such a threat has a negative impact on the victim and their psyche; it may, to some extent, paralyze their will and reduce their ability to take active action.

The definitions of an employee of an institution ensuring isolation from society, as well as places of detention, are provided in the commentary to Article 426 of the Criminal Code. The definition of close relatives is provided in Subparagraph 11) of Article 7 of the Criminal Procedure Code.

According to Part 3 of Article 65 of the Criminal Procedure Code, a defendant in respect of whom a guilty verdict has been delivered is referred to as a convicted person.

An important condition for recognizing the perpetrator's conduct as constituting the crime in question is that the use of violence must be connected with the official activities of the institution employee, as well as with the rehabilitation process of the convicted person or their assistance to the administration of the institution. In the absence of such a connection, the act may be classified as a criminal offence against the person.

This Article of the Criminal Code also does not apply in cases of threats against suspects or accused persons held in custody who are not convicted persons. Such an act is classified under Article 115 of the Criminal Code, "Threat".

For the crime to be recognized as completed, it is sufficient that a threat of violence has been made, regardless of whether the perpetrator achieved the objective they had set. Likewise, for the existence of the elements of this crime to be established, it is irrelevant in what form the threat was made, whether the victim was present at the time, whether the threat was conveyed orally or in writing through third parties, or whose interests the perpetrator was acting in when threatening the victim.

From the subjective standpoint, this crime can only be committed intentionally. The perpetrator is aware that they are threatening to use violence against an employee of the institution in which they are serving their sentence or being held in custody, or threatening a convicted person for the purpose of obstructing the latter's rehabilitation or out of revenge for the assistance provided to the administration of the institution. The perpetrator is aware of the public danger of their actions, foresees their commission and desires that they occur.

An essential element of this crime when a person sentenced to imprisonment is threatened is a special purpose — to obstruct their rehabilitation — or a special motive in the form of revenge for the assistance they provided to the administration of the institution. According to Subparagraph 10) of Article 3 of the Penal Enforcement Code, the rehabilitation of a convicted person means the development in the convicted person of law-abiding behaviour and a positive attitude towards individuals, society, work, and the norms, rules and etiquette of conduct in society. Threatening to use violence against a person sentenced to imprisonment for other motives (for example, personal hostility, a domestic conflict, etc.) entails classification under the Articles concerning criminal offences against the person.

The subject of this crime may be a physically sane individual who has reached the age of 16 and is serving a sentence or being held in custody, since this act is committed in institutions ensuring isolation from society.

Part 2 of the Article under consideration provides for liability for an act committed through the use of violence that is not dangerous to life or health against the persons specified in Part 1 of this Article.

Physical violence that is not dangerous to life or health should be understood as beatings or the commission of other violent acts associated with causing physical pain to the victim, as well as causing minor bodily harm to the victim, provided that such harm was not inflicted under circumstances dangerous to the victim's life or health and that outpatient or inpatient medical treatment was not required for their recovery.

In accordance with Subparagraph 13) of Article 3 of the Criminal Code, minor bodily harm is harm to human health that has resulted in a short-term health disorder (for a period not exceeding twenty-one days) or a minor permanent loss of general working capacity (less than one tenth).

Other violent acts in this context are understood to mean actions which, although not associated with causing pain, disrupting the anatomical integrity of organs (tissues) or their physiological functions (bodily injuries), are nevertheless aimed at restricting the victim's physical freedom (for example, tying them up, disarming them, locking them up, etc.) and depriving them of the ability to properly perform their duties.

Classification under Part 3 of the Article of the Criminal Code being analysed requires the presence of one of the following qualifying circumstances: 1) commission by a group of persons upon prior conspiracy; 2) commission involving the use of violence dangerous to life or health.

These qualifying circumstances were explained in the commentary to Part 2 of Article 426 of the Criminal Code.

Where physical violence results in the infliction of moderate bodily harm or grievous bodily harm, the perpetrator's actions are classified under Part 3 of Article 429 of the Criminal Code. In this case, additional classification under the Articles of the Criminal Code establishing liability for criminal offences against the person is not required.

The infliction of grievous bodily harm that negligently results in the victim's death is not covered by the elements of the offence under Part 3 of Article 429 of the Criminal Code and requires additional classification under Part 3 of Article 106 of the Criminal Code.

Part 4 of Article 429 of the Criminal Code provides for an especially aggravated form of the crime under consideration: encroachment upon the life of an employee of an institution ensuring isolation from society, or upon the life of their spouse or close relatives, in connection with the performance of their official duties, as well as encroachment upon the life of a convicted person for the purpose of obstructing their rehabilitation or out of revenge for the assistance they provided to the administration of the institution.

The objective element of the crime is expressed in the encroachment upon the lives of the persons specified above. Encroachment upon life means murder or attempted murder. Consequently, the crime is deemed completed from the moment an attempt is made on the life of an employee of an institution ensuring isolation from society, their spouse or close relatives, as well as a convicted person. Application of Article 24 of the Criminal Code is not required in this case.

Encroachment upon the life of an employee of an institution ensuring isolation from society, or upon the life of their spouse or close relatives, in connection with the performance of their official duties, must be classified under Part 4 of Article 429 of the Criminal Code. If the encroachment upon their life is committed for other motives and is not connected with the performance of their official duties, the act should be classified under the relevant part of Article 99 of the Criminal Code, depending on the qualifying circumstances.

In accordance with Paragraph 24 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated May 11, 2007, "On the Classification of Certain Criminal Offences Against Human Life and Health", murder committed by a person serving a sentence of imprisonment or being held in custody in connection with an imposed preventive measure, during the disruption of the normal operation of a penal enforcement system institution ensuring their isolation from society, or by a participant in mass riots, as well as murder committed in excess of authority or official powers, is not covered by the Articles of the Criminal Code providing for liability for the commission of these criminal offences. Therefore, such murder must be independently classified under the relevant part of Article 99 of the Criminal Code, while all of the perpetrator's actions are subject to classification based on the aggregate of criminal offences.

Therefore, where the victim is murdered, the perpetrator's actions should be classified under Part 4 of Article 429 of the Criminal Code and Subparagraph 2) of Part 2 of Article 99 of the Criminal Code.

The act provided for in Part 1 of Article 429 of the Criminal Code belongs to the category of medium-gravity crimes.

The acts provided for in Parts 2 and 3 of Article 429 of the Criminal Code belong to the category of grave crimes.

The act provided for in Part 4 of Article 429 of the Criminal Code belongs to the category of especially grave crimes.

Spelling errors and obvious typographical errors, as well as errors in word hyphenation and punctuation, have been corrected. The content, structure and length of the text have been preserved; legal formulations and possible inaccuracies of a legal nature have not been altered.

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

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