Commentary on Article 9. Extradition of Persons Who Have Committed a Criminal Offense under the Criminal Code of the Republic of Kazakhstan
Citizens of the Republic of Kazakhstan who have committed a criminal offense in the territory of another state shall not be extradited unless otherwise established by an international treaty of the Republic of Kazakhstan.
Foreigners and stateless persons who have committed a crime outside the Republic of Kazakhstan and are present in the territory of the Republic of Kazakhstan may be extradited to a foreign state for the purpose of bringing them to criminal responsibility or serving their sentence in accordance with an international treaty of the Republic of Kazakhstan.
No person may be extradited to a foreign state if there are substantial grounds to believe that such person may be subjected in that state to torture, violence, other cruel or degrading treatment or punishment, as well as in the event of a threat of the imposition of the death penalty, unless otherwise provided for by international treaties of the Republic of Kazakhstan.
In accordance with paragraph 1 of Article 11 of the Constitution of the Republic of Kazakhstan, a citizen of the Republic of Kazakhstan may not be extradited to a foreign state unless otherwise established by international treaties of the Republic.
Pursuant to subparagraph 1) of Article 7 of the Criminal Procedure Code of the Republic of Kazakhstan, extradition of persons (extradition) means the surrender to a state of a person wanted for the purpose of bringing that person to criminal responsibility or enforcing a judgment.
The issue of extradition is governed by the rules of international law. In accordance with paragraph 3 of Article 4 of the Constitution of the Republic of Kazakhstan, international treaties ratified by the Republic shall take precedence over its laws.
The institution of extradition competes with the institution of political asylum. This competition is resolved in favor of the right to political asylum.
International treaties on the extradition of persons who have committed criminal offenses may be multilateral or bilateral in nature. Among the former, the following are of primary importance for the Republic of Kazakhstan: the 1957 European Convention on Extradition of the Council of Europe (and its two Additional Protocols of 1975–1978); the Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters of October 7, 2002, concluded in Chisinau on October 7, 2002; and a number of multilateral conventions concluded between states for the purpose of combating specific crimes, to which the Republic of Kazakhstan is a party (for example, the 1979 International Convention against the Taking of Hostages).
The European Convention regulates in detail the issue of the categories (types) of offenses, the commission of which may serve as grounds for extraditing the person who committed them. In accordance with the Convention, extradition shall be granted in respect of offenses punishable under the laws of both the requesting and the requested state by deprivation of liberty for a period of at least one year or by a more severe penalty. However, if the request for extradition concerns a person wanted for the purpose of enforcing a sentence of imprisonment or another measure involving deprivation of liberty imposed on such offender, extradition shall be permitted only if at least four months remain before the completion of that sentence.
The Convention provides for restrictions on the extradition of offenders who have committed certain other categories of offenses (not related to the type and amount of the sanction under domestic legislation). First and foremost, this concerns political offenses. Military offenses are also excluded from the scope of the Convention. The Convention also establishes other restrictions on extradition related to the specific circumstances of the place where the crimes were committed, limitation periods, and the possible imposition of the death penalty on the person subject to extradition.
The Convention sufficiently regulates the requirements applicable to an extradition request, the procedure for submitting such a request and providing accompanying documents and possible additional information, the procedure for the transit of the person subject to extradition through the territory of the Contracting Parties, and also provides for a number of procedural guarantees of the rights of the person subject to extradition during the preliminary investigation and judicial proceedings concerning the offense committed by that person (including the resolution of issues relating to the detention and arrest of the said person).
The extradition of persons who have committed criminal offenses and the conduct of criminal prosecution in respect of persons from the countries of the Commonwealth of Independent States are regulated by the Chisinau Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters, adopted on October 7, 2002. According to Article 66 of the Convention, the participating countries have undertaken, upon request, to extradite to each other persons located in their territories for the purpose of bringing them to criminal responsibility or enforcing a judgment.
When the issue of extradition arises, a person may become the subject of extradition only provided that such person holds the citizenship of the requesting state, does not hold the citizenship of the country in whose territory that person is located, and also where the person whose extradition is requested is a stateless person (apatrid) or a citizen of a third state.
A citizen of Kazakhstan who has committed a criminal offense in the territory of a foreign state shall not be extradited to that state for criminal prosecution; however, the issue of the criminal nature and punishability of the criminal offense committed by that person must be resolved in accordance with the Criminal Code of the Republic of Kazakhstan.
According to Part 1 of Article 579 of the Criminal Procedure Code, a request for the extradition of a person (extradition) shall be sent provided that at least one of the crimes in connection with which the extradition of the person is requested (extradition) is punishable by deprivation of liberty for a term of not less than one year, or the person has been sentenced to deprivation of liberty and the unserved portion of the sentence is at least six months.
Extradition for the purpose of bringing a person to criminal responsibility shall be carried out for acts which, under the domestic legislation of both the requesting and requested Contracting Parties, constitute criminally punishable offenses and for the commission of which a penalty of deprivation of liberty for a term of at least one year or a more severe penalty is prescribed.
Extradition for the enforcement of a judgment shall be carried out for acts which, under the domestic legislation of both the requesting and requested Contracting Parties, constitute criminally punishable offenses and for the commission of which the person whose extradition is requested has been sentenced to deprivation of liberty for a term of at least six months or to a more severe penalty.
When deciding whether the act for which extradition is requested constitutes a criminally punishable offense under the domestic legislation of the requested and requesting Contracting Parties, differences in the description of individual elements of the criminal offense and in the terminology used shall be irrelevant.
For example, a citizen of Kyrgyzstan who sold drugs in Russia has been detained in the territory of Kazakhstan. The drug dealer is subject to criminal liability under Part 1 of Article 297 of the Criminal Code. However, upon receipt of requests for the extradition of the offender simultaneously from Kyrgyzstan and Russia, it is necessary to decide which request should be given preference. In accordance with Article 65 of the Convention of the CIS countries on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters, the requested Party must independently decide which of the requests should be satisfied. In other words, the state in whose territory the person who committed the crime has been found acts at its own discretion: it either extradites the requested person or punishes that person under its own laws. In this case, taking into account the priority of the territorial principle over the principle of citizenship, Kazakhstan must extradite the drug dealer to Russia.
The conditions and procedure for extradition are regulated by national (domestic) legislation and international treaties. The procedure for carrying out extradition is regulated in detail by Chapter 60 of the Criminal Procedure Code. Thus, the decision on a request for the extradition of a person (extradition) is regulated by Article 591 of the Criminal Procedure Code. Following examination of the materials of the extradition inquiry, the Prosecutor General of the Republic of Kazakhstan or his/her Deputy shall decide on the extradition of the person (extradition) or refusal to extradite (extradition) the person to a foreign state. Where requests for the extradition of a person (extradition) have been submitted by several states, the decision as to which state the person is to be extradited (extradition) to shall be made by the Prosecutor General of the Republic of Kazakhstan or his/her Deputy in the form of a resolution (Part 1).
The Prosecutor General of the Republic of Kazakhstan or his/her Deputy shall notify the central authority of the foreign state, as well as the person in respect of whom the decision has been made and his/her defense counsel, of the decision (Part 2).
If a decision on extradition (extradition) is made, a copy of the resolution shall be served on that person and the right to appeal the decision to the Supreme Court of the Republic of Kazakhstan shall be explained (Part 3).
The resolution on the extradition of a person (extradition) shall be submitted for execution upon expiry of the period for appealing it. In the event that the resolution is appealed, the extradition of the person (extradition) shall not be carried out until the resolution of a judge of the Supreme Court of the Republic of Kazakhstan enters into legal force (Part 4).
If extradition (extradition) of a person to a foreign state is refused on grounds that do not preclude the conduct of criminal prosecution, upon a petition from the competent authority of the foreign state, the Prosecutor General of the Republic of Kazakhstan shall instruct that a pre-trial investigation be conducted in respect of that person in accordance with the procedure provided for by the Criminal Procedure Code of the Republic of Kazakhstan (Part 5).
The procedure for appealing a decision on the extradition of a person (extradition) is established by Article 592 of the Criminal Procedure Code, according to which a resolution of the Prosecutor General of the Republic of Kazakhstan or his/her Deputy on the extradition of a person (extradition) may be appealed to the Supreme Court of the Republic of Kazakhstan by the person in respect of whom the decision was made or by his/her defense counsel within ten days from the date of receipt of a copy of the resolution (Part 1).
The administration of the place of detention of the person in respect of whom a decision on extradition (extradition) has been made shall, upon receipt of the complaint, forward it to the Supreme Court of the Republic of Kazakhstan within twenty-four hours and notify the Prosecutor General's Office of the Republic of Kazakhstan thereof (Part 2).
The Prosecutor General of the Republic of Kazakhstan or his/her Deputy shall, within ten days from the date of receipt of notification of the appeal against the resolution on the extradition of a person (extradition), submit to the Supreme Court of the Republic of Kazakhstan the materials confirming the legality and validity of the decision made (Part 3).
Verification of the legality and validity of the decision on the extradition of a person (extradition) shall be carried out within one month from the date of receipt of the complaint by a judge of the Supreme Court of the Republic of Kazakhstan in an open court hearing with the participation of the prosecutor, the person in respect of whom the decision on extradition (extradition) has been made, and his/her defense counsel. In exceptional cases, this period may be extended (Part 4).
At the beginning of the hearing, the presiding judge shall announce which complaint is subject to consideration and explain to those present their rights, duties and liability. Then the applicant and/or his/her defense counsel shall substantiate the complaint, after which the floor shall be given to the prosecutor (Part 5).
During the judicial review, the judge of the Supreme Court of the Republic of Kazakhstan shall not examine the issues of the guilt of the person in respect of whom the decision on extradition (extradition) has been made and shall not verify the legality of procedural decisions adopted by the competent authorities of the foreign state, limiting the review to verifying whether the decision on the extradition (extradition) of that person complies with the legislation and international treaties of the Republic of Kazakhstan (Part 6).
As a result of the review, the Supreme Court of the Republic of Kazakhstan shall issue one of the following resolutions: 1) recognizing the decision on the extradition of the person (extradition) as illegal or unfounded and annulling it; 2) dismissing the complaint; 3) suspending the decision on the extradition of the person (extradition) until consideration of issues of substantial importance for making that decision, while simultaneously extending the period of detention in custody of the person for a period of at least one month (Part 7).
A resolution of the Supreme Court of the Republic of Kazakhstan recognizing the decision on the extradition of a person (extradition) as illegal or unfounded and annulling it, or dismissing the complaint, shall enter into legal force from the moment of its announcement (Part 8).
The release of a person in respect of whom the Supreme Court of the Republic of Kazakhstan has issued a resolution recognizing extradition (extradition) as illegal or unfounded and annulling it shall be carried out in accordance with the procedure provided for in Part 10 of Article 589 of the Criminal Procedure Code (Part 9).
The Republic of Kazakhstan has concluded:
15 bilateral international treaties on mutual legal assistance in criminal matters (the UAE, Georgia, India, China, Korea, Kyrgyzstan, Lithuania, Mongolia, Pakistan, Turkey, Uzbekistan, Spain, the Czech Republic);
10 bilateral international treaties on extradition (the UAE, China, Kyrgyzstan, Lithuania, Mongolia, Turkey, Iran, Spain, India, Hungary);
8 bilateral international treaties on the transfer of convicted persons (Azerbaijan, Turkmenistan, Ukraine, Spain, Turkey, China, Italy, Hungary).
According to Part 2 of Article 9 of the Criminal Code, foreigners and stateless persons who have committed a crime outside the Republic of Kazakhstan and are present in the territory of the Republic of Kazakhstan may be extradited to a foreign state for the purpose of bringing them to criminal responsibility or serving their sentence in accordance with international treaties of the Republic of Kazakhstan.
The issue of extradition arises in cases where a person who has committed a criminal offense in one country or against the interests of that country, or who is obliged to serve a sentence, is located in another country. According to international practice, an extradition request is submitted when one of the following conditions exists:
the criminal offense was committed in its territory;
the criminal offense was directed against the interests of that state;
the person who committed the criminal offense is a citizen of that state;
a judgment must be enforced in respect of the person.
The criminal law provision on the extradition of persons who have committed criminal offenses (foreign citizens and stateless persons), provided for in Part 2 of Article 9 of the Criminal Code, competes with the provisions on such principles of the operation of criminal law in space as the universal and real principles, enshrined in Part 4 of Article 8 of the Criminal Code. The competition consists in the fact that, in accordance with the above principles, the Republic of Kazakhstan has the right to bring the relevant foreign citizens and stateless persons to criminal responsibility and subject them to criminal punishment under Kazakhstan's criminal legislation.
At the same time, in accordance with the above-mentioned provision on extradition (Part 2 of Article 9 of the Criminal Code), the Republic of Kazakhstan may, at the request of an interested state, extradite a foreign citizen or a stateless person so that the interested state itself may exercise criminal jurisdiction in respect of these persons and the criminal offenses committed by them. Consequently, a comparison of the content of these criminal law provisions (Articles 8 and 9 of the Criminal Code) leads to the conclusion that the competition between these provisions is a type of competition between a general and a special provision. In my opinion, the provision on extradition (Part 2 of Article 9 of the Criminal Code) is a special provision in relation to the provision enshrined in Part 4 of Article 8 of the Criminal Code. In the event of competition between a general and a special provision, the issue should be resolved in favor of the special provision. The fact that the issue of extradition is positively resolved under the rules of international law and is confirmed by reference to Article 9 of the Criminal Code also supports our proposal.
In accordance with Part 1 of Article 590 of the Criminal Procedure Code, extradition of a person (extradition) shall not be permitted if:
the person in respect of whom a request for extradition (extradition) has been received is a citizen of the Republic of Kazakhstan and the international treaty of the Republic of Kazakhstan with the requesting Party does not provide for the extradition (extradition) of its own citizens;
the act that served as the basis for the request for the extradition of the person (extradition) is not recognized as a crime in the Republic of Kazakhstan;
the crime for which the extradition of the person (extradition) has been requested does not provide for a penalty of deprivation of liberty in the Republic of Kazakhstan;
the Republic of Kazakhstan has granted asylum to the person in respect of whom the request for extradition (extradition) has been received;
a final judgment has already been rendered against the person in respect of the same crime, or proceedings in the case have been terminated;
at the time of receipt of the request for extradition of the person (extradition), criminal prosecution under the legislation of the Republic of Kazakhstan cannot be initiated or the judgment cannot be enforced due to the expiry of limitation periods or on other lawful grounds;
there are grounds to believe that the person in respect of whom the request for extradition (extradition) has been received may be subjected to torture in the requesting Party, or that his/her health, life or freedom is threatened on the grounds of race, religion, nationality, citizenship (subjecthood), membership of a particular social group or political opinions, except in cases provided for by an international treaty of the Republic of Kazakhstan;
the act in connection with which the extradition of the person (extradition) is requested is prosecuted under the legislation of the Republic of Kazakhstan only under the procedure of private prosecution, unless otherwise provided for by an international treaty of the Republic of Kazakhstan with the requesting Party.
9. the act in connection with which the extradition of the person (extradition) is requested is classified under the legislation of the Republic of Kazakhstan as a military crime, unless otherwise provided for by an international treaty of the Republic of Kazakhstan with the requesting state;
10\. the central authority of the foreign state has failed to provide, at the request of the Prosecutor General's Office of the Republic of Kazakhstan, additional materials or data without which it is impossible to make a decision on the request for extradition (extradition);
11\) the extradition of the person (extradition) contradicts the obligations of the Republic of Kazakhstan under international treaties of the Republic of Kazakhstan;
12\. there are other grounds provided for by an international treaty of the Republic of Kazakhstan.
Extradition of a person (extradition) may be refused if the crime in connection with which extradition of the person (extradition) is requested was committed in the territory of the Republic of Kazakhstan or outside its territory but was directed against the interests of the Republic of Kazakhstan (Part 2 of Article 590 of the Criminal Procedure Code).
In the event of refusal of extradition, the requesting Contracting Party must be informed of the grounds for refusal within 10 days from the date on which the decision to refuse was made.
In the event of refusal to extradite the requested person, the competent justice institution of the requested Contracting Party shall, in accordance with the legislation of that Contracting Party, decide on the issue of criminal prosecution in respect of the person whose extradition has been refused.
In cases where political asylum is granted, as already noted, extradition to other states is not permitted in respect of persons persecuted for their political beliefs, as well as for acts (omissions) that are not recognized as criminal offenses in Kazakhstan. The procedure for granting political asylum is regulated by the Decree of the President of the Republic of Kazakhstan dated October 10, 2006, “On the Commission on Citizenship Issues under the President of the Republic of Kazakhstan”.
Commentary of 2021 on the Criminal Code of the Republic of Kazakhstan by Isidor Shamilovich Borchashvili, Honored 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, Honored Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.
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