Commentary to article 235. Creation and leadership of an organized criminal group or a criminal community (criminal organization), participation in a criminal community of the Criminal Code of the Republic of Kazakhstan of the Criminal Code of the Republic of Kazakhstan

     1. Creation of an organized criminal group, as well as its leadership —      

are punishable by imprisonment for a term of up to six years.      

2. The creation of a criminal community (criminal organization) for the commission of grave or especially grave crimes, as well as the leadership of such a community (organization) or its structural units, as well as the creation of an association of organizers, leaders or other representatives of organized criminal groups in order to develop plans and conditions for the commission of grave or especially grave crimes —      

are punishable by imprisonment for a term of five to ten years with or without confiscation of property.      

3. Participation in a criminal community (criminal organization) or in an association of organizers, leaders or other representatives of organized criminal groups —      

is punishable by imprisonment for a term of three to eight years.      

4. The acts provided for in the first, second or third parts of this Article committed by a person using his official position, —      

are punishable by imprisonment for a term of eight to fifteen years with or without confiscation of property.

     Organized crime, which poses a special public danger, not only disrupts the normal functioning of social and economic institutions of society and the State, but also poses a direct threat to national and international security and stability.      

The object of the crime is public safety.      

The objective side of the analyzed act is expressed in the creation of an organized criminal group, a criminal community (criminal organization), in their leadership; the creation of an association of organizers, leaders or other representatives of organized criminal groups; as well as participation in a criminal community (criminal organization) or in the association of organizers, leaders or other representatives of organized groups.      

Article 235 of the Criminal Code of the Republic of Kazakhstan consists of four parts: in the first part, responsibility is provided for the creation of an organized group or its leadership; in the second part, for the creation of a criminal community, as well as the leadership of such a community (organization) or its structural units, as well as responsibility for the creation of an association of organizers, leaders or other representatives of organized criminal groups; in the third — for participation in a criminal community (criminal organization) or in an association of organizers, leaders or other representatives of organized criminal groups; in the fourth — for committing these acts by a person using his official position. Thus, responsibility is differentiated not only depending on the level of criminal formations (a criminal community, an association of organizers and leaders of criminal formations, an organized group), but also on the degree of involvement of specific individuals and the role they play.      

Article 235 of the Criminal Code of the Republic of Kazakhstan provides for organized criminal formations of several levels:

1) an organized group;

2) criminal community (criminal organization);

3) association of organizers, leaders or other representatives of organized criminal groups. Article 31 of the Criminal Code of the Republic of Kazakhstan recognizes a crime:

a) committed by an organized group, if it is committed by a stable group of persons who have previously united to commit one or more crimes;

b) committed by a criminal community (criminal organization), if it was committed by a cohesive organized group (organization) created to commit grave or especially grave crimes.      

The regulatory resolution of the Supreme Court of the Republic of Kazakhstan "On certain issues of the application by courts of legislation on liability for banditry and other crimes committed in complicity" dated June 21, 2001 clarifies that the stability of an organized criminal group may be evidenced, in particular, by such signs as the stability of its composition (group) and the close relationship between its members the consistency of their actions, the constancy of the forms and methods of criminal activity, the duration of its existence.      

An organized criminal group can also be created to commit a single crime that requires special training.      

In accordance with Part 4 of Article 31 of the Criminal Code of the Republic of Kazakhstan, a criminal community differs from an organized criminal group on the basis of cohesion and the purpose of its creation is to commit serious and especially serious crimes. The sign of organization and stability are characteristic of both types of criminal formations. To distinguish them, it is necessary to establish the structure, degree of organization and nature of the relationships between the members of these criminal groups.      

An organized group by structure is an association of several persons to commit crimes.

In terms of degree of organization, it is a more disciplined association in comparison with a criminal group, but much less organized than a criminal community, since its activities are subordinate only to the head of the group. The level of relationships within the group is interpersonal.      

Organized criminal groups, in order to survive in competition with other criminal formations and expand their sphere of influence, either unite with each other or merge into the structure of a more powerful criminal formation – a criminal community (criminal organization). Thus, an organized criminal group is a structural subdivision of a criminal community (criminal organization).      

A criminal community (criminal organization) is an association in structure, but no longer of individuals, but of organized criminal groups that unite to commit serious and especially serious crimes.      

The degree of co-organization is high, subordination to a single criminal center is strictly hierarchical.      

According to the level of interrelationships, the criminal community is characterized by interrelationships between organized criminal groups.      The above-mentioned regulatory decree of the Supreme Court of the Republic of Kazakhstan states that the criminal community, as a rule, has a higher degree of organization and consists of separate criminal associations or organized criminal groups.      

A criminal community is created for the purpose of developing, coordinating, supporting, and developing the criminal activities of organized criminal groups within its structure engaged in the systematic commission of grave and especially grave crimes.      The next level of organized education is a novelty in our legislation.

Associations of organizers, leaders, or other representatives of organized criminal groups develop and resolve the most general, strategic issues of organized crime: they distribute the spheres of criminal activity by industry and (or) by territory; they deal with competing criminal associations; they maintain a common fund for providing assistance to criminals in need and their families; they legalize criminal proceeds; they bribe government officials, they establish links with international organized crime and so on.      

The creation of an organized criminal group should be understood as the commission of any active purposeful actions, which resulted in the actual formation of these organized groups or communities. These actions can be expressed in the search for participants, weapons, ammunition, communications, documents, transport and other material assets, the development of structures and criminal plans, and the recruitment of people.      

The creation of an organized criminal group, a criminal community, or an association of organizers is a complete crime, regardless of whether any crimes were planned or committed. The very process of forming these criminal formations should be considered as preparation for their creation.      

If it is established that these formations were supposed to be created to commit a specific grave or especially grave crime (for example, murder), then the actions of the individuals should also be qualified as preparation for the commission of this crime.      

The leadership of the designated criminal formations is understood as decision-making related to both the planning, financial support and organization of criminal activities of these formations, as well as the preparation and commission of specific crimes by them.      

The leadership of an organized criminal group or a criminal community can be carried out by either one or several persons.      

Failure to establish evidence that an organized group was led by a specific person does not exclude the existence of an organized criminal group.      

An organized criminal group can exist without a leader, such cases include cases when members of a small organized criminal group, without singling out a leader from their midst, solve issues of criminal activity together and act, as a rule, as co-perpetrators of their crimes.      

Participation in a criminal community or association of organizers, leaders, etc. may be expressed as membership in these criminal formations, the commission of actions aimed at financing, providing weapons, transport, searching for facilities, supplying information, etc., as well as the direct commission of planned crimes.      

Participation in a criminal community is considered a completed crime from the moment when a person became aware of the criminal nature of the criminal community's activities and consented to his participation (membership), regardless of whether he participated in the crimes committed.      

In terms of degree of organization, it is a more disciplined association in comparison with a criminal group, but much less organized than a criminal community, since its activities are subordinate only to the head of the group. The level of relationships within the group is interpersonal.      

Organized criminal groups, in order to survive in competition with other criminal formations and expand their sphere of influence, either unite with each other or merge into the structure of a more powerful criminal formation – a criminal community (criminal organization). Thus, an organized criminal group is a structural subdivision of a criminal community (criminal organization).      

A criminal community (criminal organization) is an association in structure, but no longer of individuals, but of organized criminal groups that unite to commit serious and especially serious crimes.      

The degree of co-organization is high, subordination to a single criminal center is strictly hierarchical.      

According to the level of interrelationships, the criminal community is characterized by interrelationships between organized criminal groups.      The above-mentioned regulatory decree of the Supreme Court of the Republic of Kazakhstan states that the criminal community, as a rule, has a higher degree of organization and consists of separate criminal associations or organized criminal groups.      

A criminal community is created for the purpose of developing, coordinating, supporting, and developing the criminal activities of organized criminal groups within its structure engaged in the systematic commission of grave and especially grave crimes.      The next level of organized education is a novelty in our legislation.

Associations of organizers, leaders, or other representatives of organized criminal groups develop and resolve the most general, strategic issues of organized crime: they distribute the spheres of criminal activity by industry and (or) by territory; they deal with competing criminal associations; they maintain a common fund for providing assistance to criminals in need and their families; they legalize criminal proceeds; they bribe government officials, they establish links with international organized crime and so on.      

The creation of an organized criminal group should be understood as the commission of any active purposeful actions, which resulted in the actual formation of these organized groups or communities. These actions can be expressed in the search for participants, weapons, ammunition, communications equipment, documents, vehicles and other material assets, the development of structures and criminal plans, and the recruitment of people.      

The creation of an organized criminal group, a criminal community, or an association of organizers is a complete crime, regardless of whether any crimes were planned or committed. The very process of forming these criminal formations should be considered as preparation for their creation.      

If it is established that these formations were supposed to be created to commit a specific grave or especially grave crime (for example, murder), then the actions of the individuals should also be qualified as preparation for the commission of this crime.      

The leadership of the designated criminal formations is understood as decision-making related to both the planning, financial support and organization of criminal activities of these formations, as well as the preparation and commission of specific crimes by them.      

The leadership of an organized criminal group or a criminal community can be carried out by either one or several persons.      

Failure to establish evidence that an organized group was led by a specific person does not exclude the existence of an organized criminal group.      

An organized criminal group can exist without a leader, such cases include cases when members of a small organized criminal group, without singling out a leader from their midst, solve issues of criminal activity together and act, as a rule, as co-perpetrators of their crimes.      

Participation in a criminal community or association of organizers, leaders, etc. may be expressed as membership in these criminal formations, the commission of actions aimed at financing, providing weapons, transport, searching for facilities, supplying information, etc., as well as the direct commission of planned crimes.      

Participation in a criminal community is considered a completed crime from the moment when a person became aware of the criminal nature of the criminal community's activities and consented to his participation (membership), regardless of whether he participated in the crimes committed.      

Based on the requirements of part 5 of Article 31 of the Criminal Code, the actions of a person who created or led an organized criminal group or criminal community are subject to qualification, respectively, under part 1 or part 2 of Article 235 of the Criminal Code, as well as under the relevant articles of the Special Part of the Criminal Code providing for responsibility for crimes committed by an organized criminal group or criminal community, if they were covered by his intent. At the same time, qualification under the relevant article of the Special Part of the Criminal Code is carried out with reference to article 28 of the Criminal Code, except in the case when the organizer (leader) was simultaneously a co-perpetrator of the crime.      

The actions of the organizer or the head of a criminal community who was directly involved in the crimes committed by the criminal community are not subject to additional qualification under part 3 of Article 235 of the Criminal Code.      

The actions of members of a criminal community should be qualified accordingly under part 3 of Article 235, as well as under the relevant articles of the Special Part of the Criminal Code for crimes in the preparation or commission of which they participated.      

Since participation in an organized criminal group does not in itself entail criminal liability, the actions of members of an organized criminal group are subject to qualification under the relevant paragraphs of articles of the Criminal Code providing for responsibility for crimes in the preparation or commission of which they participated.      

A person who participated in crimes committed by a criminal community is liable, respectively, under part 3 of Article 235 of the Criminal Code in cases where he was aware that he was an accomplice to a crime committed by a criminal community. If a person is unaware of the existence of a criminal entity, he is responsible only for the crime in which he participated.      

A crime is considered completed from the moment of creation, the actual leadership of criminal formations, as well as from the moment of participation in the actions of criminal formations being prepared for a crime.      

On the subjective side, the act is characterized by guilt in the form of direct intent, that is, a person is aware of the socially dangerous nature of his actions to create or lead a criminal group, as well as participation in a criminal community, anticipates that criminal groups will function as a result of such actions, and desires this.      

The subject is a sane individual who has reached the age of 16. The only qualifying feature provided by the legislation for the act in question is the commission of the listed actions by a person using his official position. Officials of various ranks and levels can take advantage of their official position and engage in such acts without much risk of being exposed, since, thanks to their position, they have great opportunities to hide traces of criminal activity, legalize criminal proceeds, and so on. This significantly increases the degree of public danger of their actions, which is taken into account by the legislator.

Commentary from 2007 to the Criminal Code of the Republic of Kazakhstan from the Honored Worker of Kazakhstan, Doctor of Law, Professor, Academician of the Kazakhstan National Academy of Natural Sciences BORCHASHVILI I.Sh.                  

Date of amendment of the act:  08/02/2007 Date of adoption of the act:  08/02/2007 Place of acceptance:  NO Authority that adopted the act: 180000000000 Region of operation:  100000000000 NPA registration number assigned by the regulatory body:  167 Status of the act:  new Sphere of legal relations:  028000000000 Report form:  COMM Legal force:  1900 Language of the Act:  rus

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