Commentary on Article 8. Application of the Criminal Law to Persons Who Have Committed a Criminal Offence Outside the Republic of Kazakhstan of the Criminal Code of the Republic of Kazakhstan
Citizens of the Republic of Kazakhstan who have committed a criminal offence outside the Republic of Kazakhstan shall be subject to criminal liability under this Code if the act committed by them is recognized as criminally punishable in the State in whose territory it was committed and if these persons have not been convicted in another State. In the event of conviction of the said persons, the punishment may not exceed the upper limit of the sanction provided for by the law of the State in whose territory the criminal offence was committed. On the same grounds, foreigners and stateless persons staying in the territory of the Republic of Kazakhstan shall also be held liable where they cannot be extradited to a foreign State for prosecution or serving a sentence in accordance with an international treaty of the Republic of Kazakhstan.
The provisions of this Code shall apply, regardless of the place where the crime was committed, to citizens of the Republic of Kazakhstan and stateless persons permanently residing in the territory of the Republic of Kazakhstan in cases where they commit a terrorist or extremist crime, or a crime against peace and the security of humanity, or cause other serious harm to the vital interests of the Republic of Kazakhstan, unless otherwise established by an international treaty of the Republic of Kazakhstan.
A criminal record and other criminal-law consequences of a person's commission of a criminally punishable act in the territory of another State shall have no criminal-law significance when deciding the issue of criminal liability of that person for a criminal offence committed in the territory of the Republic of Kazakhstan, unless otherwise provided for by an international treaty of the Republic of Kazakhstan or unless the criminally punishable act committed in the territory of another State affected the national interests of the Republic of Kazakhstan.
Military personnel of military units of the Republic of Kazakhstan stationed outside its territory shall bear criminal liability under this Code for criminal offences committed in the territory of a foreign State, unless otherwise provided for by an international treaty of the Republic of Kazakhstan.
Foreigners, as well as stateless persons who do not permanently reside in the territory of the Republic of Kazakhstan and who have committed a crime outside the Republic of Kazakhstan, shall be subject to criminal liability under this Code in cases where the act is directed against the interests of the Republic of Kazakhstan, and in cases provided for by an international treaty of the Republic of Kazakhstan, provided that they have not been convicted in another State and are prosecuted in the territory of the Republic of Kazakhstan.
The article under consideration legislatively regulates the application of the Criminal Code of the Republic of Kazakhstan to acts committed outside the Republic of Kazakhstan.
The territorial principle of the application of criminal law is the extension of its binding force to a certain territory, regardless of the State affiliation of the person who committed a criminal offence in that territory. This principle reflects the sovereignty of the State and its right to prosecute any persons who have committed a criminal offence within its territory.
Pursuant to paragraph 2 of Article 11 of the Constitution of the Republic of Kazakhstan, the Republic guarantees the protection and patronage of its citizens outside its borders.
In accordance with Article 1 of the Law of the Republic of Kazakhstan dated 20 December 1991, “On Citizenship of the Republic of Kazakhstan”:
Citizenship of the Republic of Kazakhstan determines the stable political and legal relationship of a person with the State, expressing the totality of their mutual rights and obligations;
In the Republic of Kazakhstan, every person has the right to citizenship;
Citizenship of the Republic of Kazakhstan is acquired and terminated in accordance with the Law;
A citizen of the Republic of Kazakhstan may under no circumstances be deprived of citizenship or of the right to change their citizenship, nor may they be expelled from Kazakhstan.
According to Article 3 of the said Law: “Citizens of the Republic of Kazakhstan are persons who:
permanently reside in the Republic of Kazakhstan on the date this Law enters into force;
were born in the territory of the Republic of Kazakhstan and are not citizens of a foreign State;
acquired citizenship of the Republic of Kazakhstan in accordance with the Law.
Citizenship of another State shall not be recognized for a citizen of the Republic of Kazakhstan.”
The essence of the principle of citizenship is that citizens of the Republic of Kazakhstan who have committed a criminal offence outside the Republic of Kazakhstan are subject to criminal liability under the Criminal Code of the Republic of Kazakhstan.
Citizens of the Republic of Kazakhstan who are outside its borders enjoy the protection and patronage of the State, but at the same time bear liability under the laws of their country for criminal offences committed abroad. At the same time, they may be brought to criminal liability only if the act committed by them is recognized as criminally punishable in the State in whose territory it was committed and if these persons have not been convicted in that State. In this case, the punishment imposed on the guilty persons may not exceed the upper limit of the sanction provided for by the law of the State in whose territory the criminal offence was committed.
For example, citizen U. of the Republic of Kazakhstan, while travelling in Hong Kong, struck a pedestrian with a vehicle, negligently causing serious harm to the pedestrian's health. He was not brought to liability in Hong Kong because, by the time the identity of the offender had been established, citizen U. had already returned to his home country. Citizen U. should be held liable under Part 2 of Article 345 of the Criminal Code. At the same time, he may not be sentenced to a punishment exceeding the upper limit of the sanction provided for by Chinese legislation.
Another example. By a ruling of a district judge, the criminal case against T., charged under Part 2 of Article 345 of the Criminal Code, was returned to the prosecutor due to a violation of the rules of jurisdiction. The court substantiated its decision by stating that the crime had been committed in the territory of the Omsk Region of the Russian Federation and that the case should be considered at the place where the crime was committed. Following the prosecutor's protest, the judge's ruling was overturned as unfounded. T. was a citizen of the Republic of Kazakhstan, was prosecuted in the territory of Kazakhstan for the act committed in the territory of the Russian Federation and, pursuant to Article 8 of the Criminal Code, was subject to liability under the legislation of the Republic of Kazakhstan.
On the same grounds, foreigners and stateless persons staying in the territory of the Republic of Kazakhstan shall also bear liability under the laws of the Republic of Kazakhstan for criminal offences committed abroad in cases where they cannot be extradited to a foreign State for prosecution or serving a sentence in accordance with an international treaty of the Republic of Kazakhstan.
For the first time, a provision has been introduced into the Criminal Code of the Republic of Kazakhstan according to which the provisions of the Code apply, regardless of the place where the criminal offence was committed, to citizens of the Republic of Kazakhstan and stateless persons permanently residing in the territory of the Republic of Kazakhstan in cases where they commit a terrorist or extremist crime, or a crime against peace and the security of humanity, or cause other serious harm to the vital interests of the Republic of Kazakhstan, unless otherwise established by an international treaty of the Republic of Kazakhstan.
The international community recognizes the said criminally punishable acts as a serious threat to international law and order and to the interests of all humanity. The infliction of other serious harm to the vital interests of the Republic of Kazakhstan, criminal liability for which was established by the Law of the Republic of Kazakhstan dated 11 July 2017, “On Amendments and Additions to Certain Legislative Acts of the Republic of Kazakhstan on Bringing Them into Compliance with the Norms of the Constitution of the Republic of Kazakhstan”, is a purely domestic problem.
The degree of this threat has shown an upward trend in recent times. Today, the United Nations and other authoritative international organizations have adopted special instruments condemning terrorism in all its manifestations, and have repeatedly emphasized the need for a firm and uncompromising fight against this evil. Thus, subparagraph “e” of paragraph 2 of Resolution No. 1373 (2001), adopted by the UN Security Council on 28 September 2001, emphasizes that the methods and practices of terrorism are contrary to the purposes and principles of the United Nations. In this regard, States must ensure that any person who participates in the financing, planning, preparation or commission of terrorist acts, or in supporting terrorist acts, is brought to justice, and that, in addition to any other measures taken against such persons, such terrorist acts are classified as serious criminal offences under domestic laws and regulations, and that the punishment duly reflects the seriousness of such terrorist acts.
International treaties in force in this area provide for the need for active cooperation between States Parties in countering the said negative phenomena. Thus, pursuant to Article 9 of the International Convention for the Protection of All Persons from Enforced Disappearance, ratified by the Law of the Republic of Kazakhstan dated 15 December 2008 No. 104-IV: “Each State Party shall take the necessary measures to establish its competence to exercise jurisdiction over the crime of enforced disappearance:
a) when the crime is committed in any territory under its jurisdiction or on board a sea or aircraft registered in that State;
b) when the alleged offender is a national of that State;
c) when the disappeared person is a national of that State and if that State considers it appropriate.
Each State Party shall also take the necessary measures to establish its competence to exercise jurisdiction over the crime of enforced disappearance when the alleged offender is present in any territory under its jurisdiction, unless it extradites or surrenders that person to another State in accordance with its international obligations or surrenders that person to an international criminal court whose jurisdiction it recognizes.”
According to Part 2 of the article under consideration, a criminal record and other criminal-law consequences of a person's commission of a criminal offence in the territory of another State shall have no criminal-law significance when deciding the issue of that person's criminal liability for a criminal offence committed in the territory of the Republic of Kazakhstan, unless otherwise provided for by an international treaty of the Republic of Kazakhstan or unless the criminal offence committed in the territory of another State affected the interests of the Republic of Kazakhstan.
This means that a person's previous criminal record or commission of a criminal offence outside the Republic of Kazakhstan is not taken into account when that person is brought to criminal liability for a criminal offence committed in the territory of the Republic of Kazakhstan, unless otherwise provided for by an international treaty of the Republic of Kazakhstan. At the same time, if a person was previously convicted under the criminal legislation of another State for a crime affecting the interests of the Republic of Kazakhstan (for example, for the murder of a citizen of the Republic of Kazakhstan), such conviction shall be taken into account when the person is prosecuted for a similar act committed in the territory of Kazakhstan. In this case, the real principle of the application of criminal law applies, which consists in the State extending the application of its criminal law to crimes committed by foreign citizens outside its territory if they encroach upon the interests of that State.
Part 3 of the provision under analysis concerns the liability of military personnel of military units of the Republic of Kazakhstan stationed outside its territory for criminal offences committed in the territory of a foreign State. Military personnel of military units stationed outside their country shall bear criminal liability under the Criminal Code of the Republic of Kazakhstan in cases where they commit, at the location of the military unit, an official or military criminal offence, or a crime directed against the interests of their country. Where military personnel commit a criminal offence outside the location of the military unit, the principle of territoriality shall apply, i.e. the person shall be brought to criminal liability under the laws of the State in whose territory the criminal offence was committed.
As a rule, foreigners and stateless persons do not bear liability for crimes or criminal misdemeanours committed outside the Republic of Kazakhstan. An exception to this rule is constituted by the cases provided for in Part 4 of the article under consideration, involving the commission abroad of a criminal offence by a foreigner or a stateless person who does not permanently reside in the territory of the Republic of Kazakhstan.
Pursuant to Part 4 of Article 8 of the Criminal Code, foreigners, as well as stateless persons who do not permanently reside in the territory of the Republic of Kazakhstan and who have committed a crime outside the Republic of Kazakhstan, shall be subject to criminal liability under the Criminal Code of the Republic of Kazakhstan in cases where the act is directed against the interests of the Republic of Kazakhstan, and in cases provided for by an international treaty of the Republic of Kazakhstan, provided that they have not been convicted in another State and are prosecuted in the territory of the Republic of Kazakhstan (the real principle of the application of the law in space).
A literal interpretation of the provision enshrined in Part 4 of the article under consideration leads to the conclusion that crimes directly directed against the interests of the Republic of Kazakhstan should be understood as crimes directly directed against the interests of the Republic of Kazakhstan, which include criminal offences provided for in Chapter 5 of the Criminal Code, “Criminal Offences Against the Fundamentals of the Constitutional Order and the Security of the State”.
In fact, any criminal offence provided for by the Criminal Code of the Republic of Kazakhstan and committed by a foreign citizen or a stateless person who does not permanently reside in the Republic of Kazakhstan may serve as grounds for applying the real principle of the application of criminal law in space.
For the real principle to apply, the person must not have previously been convicted by any other court for the crime or criminal misdemeanour committed.
In accordance with Part 4 of Article 8 of the Criminal Code, the real principle applies only to acts of foreigners and stateless persons who do not permanently reside in the Republic of Kazakhstan. Citizens of the Republic of Kazakhstan and stateless persons permanently residing in the Republic of Kazakhstan are excluded from the scope of application of the real principle.
The real principle of the application of criminal law in space applies where crimes are committed outside the borders of Kazakhstan by foreign citizens and stateless persons who do not permanently reside in the Republic of Kazakhstan.
The expression “outside the Republic of Kazakhstan” includes both the territory of a foreign State and international space. Such wording makes it possible to extend the criminal-law jurisdiction of the Republic of Kazakhstan to all foreign citizens and stateless persons who do not permanently reside in the Republic of Kazakhstan for the commission, outside its State borders, of any criminal offences directed against the interests of the Republic of Kazakhstan, its citizens and stateless persons permanently residing in the Republic of Kazakhstan.
Paragraph 1 of Article 15 of the International Covenant on Civil and Political Rights (1966) refers to the criminal nature of an act in accordance not only with domestic criminal law but also with international law (treaty or customary rules): “No one shall be held guilty of any criminal offence on account of any act or omission which, at the time when it was committed, did not constitute a criminal offence under the domestic law or international law.”
Paragraph 2 of Article 15 of the said Covenant provides: “Nothing in this article shall prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognized by the community of nations.” Similar provisions are contained in paragraph 1 of Article 7 of the 1950 Convention for the Protection of Human Rights and Fundamental Freedoms. These treaty-based international legal provisions emerged after the Nuremberg and Tokyo military tribunals, which, following the Second World War, convicted the principal war criminals of Germany and Japan. They were charged with committing serious crimes, including acts that were not provided for by the criminal legislation of either those aggressor States or the victorious powers (for example, crimes against peace: planning, preparation, initiation and waging of a war of aggression).
Each State Party shall establish its jurisdiction where the crime is committed against a national of that State Party (subparagraph “a” of paragraph 2 of Article 15 of the United Nations Convention against Transnational Organized Crime dated 15 November 2000). A State Party may also establish its jurisdiction over any such crime where the crime is committed against a national of that State Party or where the crime is committed against that State Party (Article 42 of the United Nations Convention against Corruption).
Unfortunately, the legislator did not consider it necessary to reflect in the Criminal Code of the Republic of Kazakhstan the issues concerning the possibility of implementing these international legal obligations of the Republic of Kazakhstan in circumstances where, on the one hand, the Criminal Code of the Republic of Kazakhstan is based on the universally recognized principles and norms of international law (Part 2 of Article 1), while, on the other hand, the criminal nature of an act, its punishability and other criminal-law consequences are determined exclusively by the Criminal Code of the Republic of Kazakhstan (Part 1 of Article 4).
Commentary to the Criminal Code of the Republic of Kazakhstan, 2021, 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 Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.
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