Commentary on Article 7. Application of the Criminal Law to Persons Who Have Committed a Criminal Offence on the Territory of the Republic of Kazakhstan of the Criminal Code of the Republic of Kazakhstan

• A person who has committed a criminal offence on the territory of the Republic of Kazakhstan shall be subject to liability under this Code.
• A criminal offence committed on the territory of the Republic of Kazakhstan shall be deemed to be an act that was commenced or continued, or completed on the territory of the Republic of Kazakhstan. The application of this Code shall also extend to criminal offences committed on the continental shelf and in the exclusive economic zone of the Republic of Kazakhstan.
• A person who has committed a criminal offence on a vessel registered at a port of the Republic of Kazakhstan and located in open waters or airspace outside the territory of the Republic of Kazakhstan shall be subject to criminal liability under this Code, unless otherwise provided for by an international treaty of the Republic of Kazakhstan. A person who has committed a criminal offence on a warship or military aircraft of the Republic of Kazakhstan shall also bear criminal liability under this Code, regardless of its location.
• The issue of criminal liability of diplomatic representatives of foreign states and other citizens enjoying immunity, in the event that such persons commit a criminal offence on the territory of the Republic of Kazakhstan, shall be resolved in accordance with the norms of international law.

This article establishes the territorial principle governing the application of criminal law. According to the general rule adopted in developed countries, the criminal law of the country in whose territory the criminal offence was committed shall apply. Therefore, all persons who have committed a criminal offence on the territory of the Republic of Kazakhstan shall be subject to liability under the Criminal Code of the Republic of Kazakhstan. These include citizens of the Republic of Kazakhstan, foreign citizens, as well as stateless persons. Stateless persons (apatrids) are not citizens of the Republic of Kazakhstan and do not possess evidence of citizenship (nationality) of another state.

The application of criminal law to persons who have committed a criminal offence on the territory of the Republic of Kazakhstan is based on the following principles: territoriality, citizenship, diplomatic immunity, real, universal, and extradition of offenders.

The territorial principle governing the application of criminal law means the extension of its binding force to a specific territory, regardless of the citizenship (nationality) of the person who committed a criminal offence within that territory. This principle reflects the state's sovereignty in exercising criminal prosecution over any persons who commit criminal offences on its territory.

In accordance with this principle, the place where the criminal offence was committed is of decisive importance when determining which criminal law is to be applied. The place where a criminal offence is committed shall be deemed to be the territory of the state in which the criminal law is in force. Pursuant to paragraph 2 of Article 2 of the Constitution of the Republic of Kazakhstan, the sovereignty of the Republic extends throughout its entire territory.

To determine the territorial boundaries of the application of criminal law, reference should be made to the Law of the Republic of Kazakhstan dated 16 January 2013, “On the State Border of the Republic of Kazakhstan”, according to Article 1 of which: “The State Border of the Republic of Kazakhstan is a line and a vertical plane passing along that line, which define the limits of the territory of the Republic of Kazakhstan (land, waters, subsoil, airspace) and the spatial limits of the exercise of state sovereignty of the Republic of Kazakhstan.”

This Law emphasizes that the concept of the territory of the Republic of Kazakhstan encompasses not only land within the State Border but also territorial waters, including coastal sea waters and internal waters. The territory of the Republic of Kazakhstan also includes the subsoil beneath the land territory of the Republic of Kazakhstan and the airspace above its land and water territories.

The concept of land includes the entire land territory, including islands located within the State Border line.

According to Article 2 of the Law “On the State Border of the Republic of Kazakhstan”, the water territory includes territorial waters (the sea) and internal waters. The territorial waters (sea) of the Republic of Kazakhstan comprise a maritime belt twelve nautical miles wide, measured in accordance with the norms of international law and the laws of the Republic of Kazakhstan from the baselines in the Caspian Sea, over which the sovereignty of the Republic of Kazakhstan extends, and whose outer limit constitutes the State Border (paragraph 5).

The internal waters of the Republic of Kazakhstan constitute an integral part of the territory of the Republic of Kazakhstan and include waters:

• located landward of the baselines in the Caspian Sea;
• of gulfs, bays, inlets and estuaries bounded by a straight line drawn from shore to shore at the location of the long-term average water level;
• of the ports of the Republic of Kazakhstan, bounded by a line passing through the points of hydraulic engineering and other permanent port structures located farthest seaward;
• of the Aral Sea, located from the State Border towards the coast of the Republic of Kazakhstan up to the Aklak hydraulic structure in the Berg Strait (within the Kazakhstani part of the Greater Aral Sea);
• of boundary rivers, lakes and other bodies of water whose banks belong to the Republic of Kazakhstan.

According to Article 10 of the Code of the Republic of Kazakhstan dated 27 December 2017, “On Subsoil and Subsoil Use”, subsoil is defined as the part of the Earth's crust located below the soil layer, or, in the absence of such a layer, below the Earth's surface, the beds of water bodies and watercourses.

Under the Law of the Republic of Kazakhstan dated 15 July 2010, “On the Use of the Airspace of the Republic of Kazakhstan and Aviation Activities”, airspace is understood to mean the airspace above the land and water territory of the Republic of Kazakhstan, including above its territorial waters. The altitude of the air column belonging to the territories of states has not yet been determined by the norms of international law. The Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, dated 27 January 1967, did not establish a boundary between national airspace and outer space. According to international custom and the practice of states in the field of the use of outer space, this boundary lies at an altitude of 100 miles above sea level, since this is the lowest altitude above the Earth that allows a spacecraft to maintain free orbital motion. The criminal jurisdiction of the Republic of Kazakhstan extends to airspace below this boundary.

According to paragraph 3 of Article 9 of the Law of the Republic of Kazakhstan “On the State Border of the Republic of Kazakhstan”: “The State Border of the Republic of Kazakhstan shall be established:

1. on land — along characteristic points, terrain lines or clearly visible landmarks;
2. on the Caspian Sea — along the outer limit of the territorial waters (sea) of the Republic of Kazakhstan;
3. on the Aral Sea — along a line connecting the boundary points at which the State Border reaches the shores, which shall not shift when the configuration of the shoreline or the water level in the sea changes;
4. on navigable rivers — along the middle of the main fairway or the thalweg of the river; on non-navigable rivers and streams — along their middle or the middle of the main branch of the river; on lakes and other bodies of water (except for the bodies of water specified in subparagraph 5) of paragraph 3 of this Article) — along an equidistant, median, straight or other line connecting the points at which the State Border reaches the shores of the lake or other body of water.

The State Border passing along a river, stream, lake or other body of water shall not shift when the configuration of the shores or the water level changes, or when the course of a river or stream deviates;

1. on reservoirs of hydraulic facilities and other artificial bodies of water — in accordance with the State Border that existed on the ground before the area was flooded;
2. on bridges, dams and other structures crossing rivers, streams, lakes and other bodies of water — along the middle of such structures or their technological axis, regardless of the location of the State Border in the water.”

Part 2 of Article 7 of the Criminal Code stipulates that its application also extends to criminal offences committed on the continental shelf and in the exclusive economic zone of the Republic of Kazakhstan.

In accordance with subparagraph 6) of Article 2 of the Law of the Republic of Kazakhstan “On the State Border of the Republic of Kazakhstan”, the continental shelf includes an area of the seabed and subsoil measured from the State Border (the outer limit of the territorial waters, the sea) to the limits established by international treaties ratified by the Republic of Kazakhstan.

According to the 1958 Geneva Convention, the concept of the continental shelf includes the surface and subsoil of the seabed of submarine areas adjacent to the coast but situated outside the territorial sea zone, to a depth of 200 metres or, beyond that limit, to such a point as the depth of the superjacent waters admits of the exploitation of the natural resources of those areas, as well as the surface and subsoil of similar submarine areas adjacent to the coasts of islands.

In other words, the continental shelf of the Republic of Kazakhstan comprises the surfaces and subsoil of the seabed adjacent to the territorial sea, extending to a specified depth. Structures and installations erected for the purpose of exploring or exploiting the natural resources of the continental shelf of the Republic of Kazakhstan fall under the jurisdiction of the Republic of Kazakhstan. Foreign natural and legal persons are not entitled to conduct research, exploration or exploitation of natural resources, or other activities, on the continental shelf, except in cases provided for by agreements between the Republic of Kazakhstan and a foreign state or where specifically authorized by a competent state authority of the Republic of Kazakhstan. Criminal liability is provided for violations of legislation governing the continental shelf (Article 331 of the Criminal Code).

Criminal legislation also applies in cases where a criminal offence is committed in the exclusive economic zone of the Republic of Kazakhstan. Its legal regime is similar to that of the continental shelf, and liability for criminal offences violating this regime is also provided for in Article 331 of the Criminal Code.

The exclusive economic zone is a maritime space (area) located beyond and adjacent to the territorial sea, which has a special legal regime. The boundary of the exclusive economic zone is established at a distance of 200 nautical miles, measured from the line of the greatest low tide, both on the mainland and on islands belonging to Kazakhstan.

The establishment of exclusive economic zones is carried out in accordance with the 1982 United Nations Convention on the Law of the Sea. Within such zones, the Republic of Kazakhstan has exclusive rights to explore, exploit and conserve natural resources (living and non-living) in the waters superjacent to the seabed, on the seabed and in its subsoil, to manage such resources, as well as to carry out any activities relating to the economic exploitation of the zone. Artificial islands, installations and structures may be established in such a zone, scientific research may be conducted, and measures may be taken to protect and preserve the marine environment.

It should be emphasized that, in the exclusive economic zone, only acts associated with the unlawful establishment of safety zones, research and exploitation of the zone's natural resources are punishable under the Criminal Code of the Republic of Kazakhstan. Therefore, for example, if a murder is committed aboard a foreign vessel outside territorial waters but within the exclusive economic zone, the response to such an incident does not fall within the jurisdiction of the Republic of Kazakhstan. Where a criminal offence is committed aboard an aircraft, sea vessel or river vessel registered at a port of the Republic of Kazakhstan, while located outside the territory of the Republic of Kazakhstan in neutral airspace or waters, liability arises under the Criminal Code of the Republic of Kazakhstan. This refers to civilian aircraft, helicopters, steamships, yachts, etc. If a criminal offence is committed aboard a vessel in the territorial or internal waters or airspace of another country, liability shall arise under the legislation of that country.

The territory of the Republic of Kazakhstan also includes its warships and military aircraft. This provision is enshrined in Part 3 of the provision under consideration: “A person who has committed a criminal offence on a vessel registered at a port of the Republic of Kazakhstan and located in open waters or airspace outside the territory of the Republic of Kazakhstan shall be subject to criminal liability under this Code, unless otherwise provided for by an international treaty of the Republic of Kazakhstan. A person who has committed a criminal offence on a warship or military aircraft of the Republic of Kazakhstan shall also bear criminal liability under this Code, regardless of its location.” Consequently, military naval vessels and military aircraft are, under all circumstances and regardless of their location (in the high seas or in foreign ports), subject to the jurisdiction of the state at whose port they are registered.

The jurisdiction of states over sea and river vessels is determined by several international legal instruments. According to Article 95 of the United Nations Convention on the Law of the Sea of 10 December 1982, warships enjoy complete immunity from the jurisdiction of any state other than the flag state on the high seas. According to international legal instruments, non-compliance by a foreign warship or members of its crew with the laws of the state in whose territorial or internal waters the vessel is located falls exclusively within the jurisdiction of the state at whose port the warship is registered.

However, if members of the crew of such a vessel or aircraft leave it and are physically present on the territory of a foreign state (in a club, restaurant, etc.), they are subject to the jurisdiction of that foreign state in accordance with the norms of international law.

Persons who commit a criminal offence aboard non-military (civilian) vessels registered at a port of the Republic of Kazakhstan shall be subject to criminal liability under the Criminal Code of the Republic of Kazakhstan only on the condition that the said vessels are located in open waters or airspace outside the territory of the Republic of Kazakhstan.

Certain difficulties arise when determining whether a particular criminal offence falls within the jurisdiction of Kazakhstan in establishing the place where the criminal offence was committed. Such a question arises in cases where a criminal offence was commenced on the territory of one state and completed on the territory of another, or where accomplices in a criminal offence performed their actions on the territories of different states.

According to Part 2 of the provision under consideration, a criminal offence committed on the territory of the Republic of Kazakhstan shall be deemed to be an act that was commenced or continued, or completed on the territory of the Republic of Kazakhstan. Consequently, if an act is committed on the territory of the Republic of Kazakhstan, while its socially dangerous consequences are expected to occur on the territory of another state, the criminal offence shall be deemed to have been committed on the territory of the Republic of Kazakhstan. Criminal offences commenced abroad and continued or completed on the territory of the Republic of Kazakhstan also fall within the scope of application of the Criminal Code of the Republic of Kazakhstan. In the case of a criminal offence committed with complicity, the place where the criminal offence was committed shall be deemed to be the territory in which the perpetrator's unlawful activity was completed or suppressed. Thus, all natural persons, including foreign citizens and stateless persons, shall be subject to liability under the criminal laws of the Republic of Kazakhstan if they commit a criminal offence on the territory of the Republic of Kazakhstan.

An exception to the territorial principle is the principle of diplomatic immunity, enshrined in Part 4 of Article 7 of the Criminal Code, according to which: “The issue of criminal liability of diplomatic representatives of foreign states and other citizens enjoying immunity, in the event that such persons commit a criminal offence on the territory of the Republic of Kazakhstan, shall be resolved in accordance with the norms of international law.”

A similar provision is contained in the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan “On the Application of the Norms of International Treaties of the Republic of Kazakhstan”. Paragraph 8 of the said Regulatory Resolution states: “By virtue of Part 4 of Article 7 of the Criminal Code, the issue of criminal liability of diplomatic representatives of foreign states and other citizens enjoying immunity, in the event that such persons commit a crime on the territory of the Republic of Kazakhstan, shall be resolved in accordance with the norms of international law (in particular, in accordance with the 1961 Vienna Convention on Diplomatic Relations, the 1963 Vienna Convention on Consular Relations) and other international treaties of the Republic of Kazakhstan.

In this case, reference is made to the immunity of diplomatic personnel, that is, the exemption of the relevant persons from criminal prosecution, detention and arrest, from giving testimony, and from the inspection of premises and documents in respect of unlawful acts committed in the host country.”

The list of persons enjoying diplomatic immunity is determined by the Criminal Procedure Code of the Republic of Kazakhstan and international legal instruments.

Thus, in accordance with Part 1 of Article 553 of the Criminal Procedure Code and international treaties ratified by the Republic of Kazakhstan, the following persons are entitled to diplomatic immunity from criminal prosecution:

1. heads of diplomatic missions of foreign states, members of the diplomatic staff of such missions, and members of their families who reside with them and are not citizens of the Republic of Kazakhstan;
2. on the basis of reciprocity, members of the service staff of diplomatic missions and members of their families residing with them, provided that such employees and their family members are not citizens of the Republic of Kazakhstan or do not reside permanently in Kazakhstan, heads of consulates and other consular officers in respect of acts committed by them in the performance of their official duties, unless otherwise provided for by an international treaty of the Republic of Kazakhstan;
3. on the basis of reciprocity, members of the administrative and technical staff of diplomatic missions and members of their families residing with them, provided that such employees and their family members are not citizens of the Republic of Kazakhstan or do not reside permanently in Kazakhstan;
4. diplomatic couriers;
5. heads and representatives of foreign states, members of parliamentary and governmental delegations and, on the basis of reciprocity, members of delegations of foreign states arriving in Kazakhstan to participate in international negotiations, international conferences and meetings, or for other official assignments, as well as those transiting through the territory of the Republic of Kazakhstan for the same purposes, and members of the families of the said persons accompanying them, provided that such family members are not citizens of the Republic of Kazakhstan;
6. heads, members and personnel of representations of foreign states to international organizations, and officials of such organizations located on the territory of the Republic of Kazakhstan, on the basis of international treaties or generally recognized international customs;
7. heads of diplomatic missions and members of the diplomatic staff of representations of foreign states in a third country transiting through the territory of the Republic of Kazakhstan, and members of their families accompanying such persons or travelling separately in order to join them or return to their country;
8. other persons in accordance with an international treaty of the Republic of Kazakhstan.

Persons specified in subparagraphs 1), 4)–7) of Part 1 of Article 553 of the Criminal Procedure Code, as well as other persons in accordance with an international treaty of the Republic of Kazakhstan, may be subjected to criminal prosecution only if the foreign state expressly waives their immunity from criminal prosecution. The issue of such a waiver shall be resolved through diplomatic channels, upon submission by the Prosecutor General of the Republic of Kazakhstan, through the Ministry of Foreign Affairs of the Republic of Kazakhstan. In the absence of a waiver of immunity from criminal prosecution by the relevant foreign state in respect of the said persons, the criminal case shall be subject to termination (Part 2 of Article 553 of the Criminal Procedure Code).

An exception is made for cases where a crime committed by employees of the service and administrative and technical staff of diplomatic missions and members of their families residing with them, provided that they are not citizens of the Republic of Kazakhstan or do not reside permanently in Kazakhstan, as well as by heads of consulates and other consular officers, is connected with the performance of their official duties and is not directed against the interests of the Republic of Kazakhstan, unless otherwise provided for by an international treaty of the Republic of Kazakhstan (Part 3 of Article 553 of the Criminal Procedure Code).

Persons listed in subparagraphs 1), 4), 7) of Part 1 of Article 553 of the Criminal Procedure Code, as well as other persons in accordance with an international treaty of the Republic of Kazakhstan, enjoy personal inviolability. They may not be detained or taken into custody, except where this is necessary to enforce a judgment rendered against them that has entered into legal force (Part 1 of Article 554 of the Criminal Procedure Code).

Persons specified in subparagraphs 2) and 3) of Part 1 of Article 553 of the Criminal Procedure Code may be detained or taken into custody, unless otherwise provided for by an international treaty of the Republic of Kazakhstan, only if they are prosecuted for committing a serious or particularly serious crime, or for the enforcement of a court judgment that has entered into legal force (Part 2 of Article 554 of the Criminal Procedure Code).

The 1961 Vienna Convention on Diplomatic Relations, the 1973 United Nations Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents, and other instruments establish a list of diplomatic representatives, members of their families and employees of the administrative and technical staff of diplomatic missions, as well as other officials to whom diplomatic immunity applies.

Persons enjoying diplomatic immunity, to whom the Criminal Code of the Republic of Kazakhstan cannot be applied, include heads of diplomatic missions (ambassadors, chargés d'affaires, and interim chargés d'affaires), diplomatic agents, envoys, counsellors, first, second and third secretaries, attachés and others, as well as members of their families.

Immunity and personal inviolability mean that persons enjoying diplomatic immunity are not subject to criminal liability under the law of the place of accreditation (residence) for a criminal offence committed in that place. If such persons commit a criminal offence on the territory of the Republic of Kazakhstan, they are generally declared persona non grata (from Latin persona non grata — an undesirable person, that is, a diplomatic representative who does not enjoy the confidence of the government of the state to which they are appointed, or who has lost such confidence and is subject to recall) and expelled from the territory of the host country.

Commentary on the Criminal Code of the Republic of Kazakhstan, dated 2021, by Isidor Shamilovich Borchashvili, Honoured 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 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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