Commentary to Article 237 of the Criminal Code of the Republic of Kazakhstan. Banditry of the Criminal Code of the Republic of Kazakhstan of the Criminal Code of the Republic of Kazakhstan

     1. The creation of a stable armed group (gang) for the purpose of attacking citizens or organizations, as well as the leadership of such a group (gang), –      

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

2. Participation in a stable armed group (gang) or in attacks committed by it –      

is punishable by imprisonment for a term of six to twelve years with or without confiscation of property.      

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

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

     The public danger of this crime lies in the fact that the activities of bandit formations give rise to a sense of fear among citizens, personal insecurity, threats to their legitimate interests, disorganizes the normal work of state, public and other institutions, all of which ultimately affects the psychological stability of society and the productivity of its activities.      

The object of banditry is public safety. An additional object of banditry may be the life and health of citizens, property, and the normal activities of government and management.      

The objective side of banditry is expressed in the creation of a stable armed gang, leadership of a gang, participation in a gang, participation in an attack committed by a gang.      

A gang should be understood as a stable, organized armed group of two or more individuals who have previously joined together to commit one or more attacks on individual citizens or organizations. A gang differs from an organized criminal group in that it is armed and has a criminal purpose – to attack citizens and organizations. A gang is one of the specific forms of an organized criminal association, which has the following characteristics::     

1) participation of two or more persons;      

2) Sustainability;      

3) armament;      

4) the existence of a special purpose for attacking citizens or organizations.      

Signs of the participation of two or more persons means that only a criminal group in which at least two members of this criminal group are 16 years old will be recognized as a gang, the third and subsequent ones may be 13, 14, 15 years old.      

The stability of the gang, according to the explanations of the regulatory resolution No. 2 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 06/21/2001, may be evidenced, in particular, by such signs as the stability of its composition, the close relationship between its members, the consistency of their actions, the persistence of forms and methods of criminal activity, the duration of its existence.      

A gang can also be created to commit a single crime that requires careful preparation.      

An obligatory sign of a gang is its armament, suggesting that the gang members have firearms or cold weapons, both factory-made and improvised, explosive devices, as well as gas and pneumatic weapons. When deciding on the recognition of weapons of items used by gang members in an attack, one should be guided by the provisions of the Law of the Republic of Kazakhstan No. 339-1 "On State control over the turnover of certain types of weapons" dated 12/30/1998. Armament is determined by the presence of weapons in at least one gang member, and the awareness of other gang members. If necessary, an expert examination should be ordered to determine whether the items used are weapons. 237 of the Criminal Code of the Republic of Kazakhstan, it does not matter whether the weapon is combat, service, civilian, cold or firearms, as well as the fact that not all gang members were armed.      

Since being armed is one of the mandatory signs of a gang, the actions of the organizer, leader or member of the gang in the illegal trafficking of weapons, ammunition, explosives and explosive devices related to the organization of the gang and its functioning are not subject to additional qualification under Article 251 of the Criminal Code, since these actions are fully covered by the mandatory sign of the gang – his armament.      

The commission by gang members of actions related to illegal arms trafficking for other purposes (for example, arms trafficking, theft of weapons, etc.) should be classified according to the totality of crimes provided for in art.237 of the Criminal Code and the relevant articles of the Special Part of the Criminal Code.      

The creation of a stable armed group (gang) should be understood as the commission of any active purposeful actions, which resulted in the actual formation of the named group (gang). 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 a stable armed group (gang) is a complete crime regardless of whether any crimes have been planned or committed. The very process of forming this criminal formation should be considered as preparation for their creation.      

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

In cases where active actions aimed at creating a stable armed group (gang), due to their timely suppression by law enforcement agencies or for other reasons, did not lead to the creation of such a group (gang), they should be qualified as an attempt to create a stable armed group (gang).      

Gang leadership refers to decision-making related to the planning, financial support and organization of criminal activities of a gang, as well as the preparation and commission of specific crimes by it. These include, for example, developing attack plans, directing specific attacks, etc.      

The leadership of a gang can be carried out by either one or several persons.      

Failure to establish evidence that a gang is led by a specific person(s) does not exclude the presence of a gang.      

A gang can exist without a leader. These include cases when members of a small gang, 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.      

According to the clarifications of the regulatory resolution No. 2 of the Supreme Court of the Republic of Kazakhstan "On certain issues of application by courts of legislation on liability for banditry and other crimes committed in complicity" dated 06/21/2001, the purpose of creating a gang according to Part 1 of Article 237 of the Criminal Code is to commit attacks on citizens and organizations. At the same time, the law does not specify which crimes are committed by the gang during the attacks, this may be not only the direct seizure of property, money or other valuables of a citizen or organization, but also murder, rape, extortion, destruction or damage to other people's property, etc.      

An attack in banditry should be understood as actions aimed at achieving a criminal result by using violence against the victim, or creating a real threat – its immediate use.      

As banditry, provided there are other mandatory signs of this crime, it is necessary to consider cases of attacks on institutions, enterprises, organizations in which there were no people, and violence was not used against them, the facts of destruction of property during the attack, in which citizens were not injured (office explosion, apartment fire, cars, etc. At the same time, it should be assumed that gang attackers are ready to use violence against any person who will prevent them from achieving their criminal goals. An attack by an armed gang is considered to have taken place even in cases where the weapons available to the gang members were not used.      

The subjective side of banditry is characterized by guilt in the form of direct intent, i.e. a person is aware that he creates, leads a gang or participates in attacks committed by it as part of a gang, anticipates the consequences of these acts and desires their occurrence. As noted above, an obligatory sign of the subjective side of banditry is a special purpose – an attack on citizens or organizations.      

The subject of banditry is a sane individual who has reached the age of 16. If a 14-year-old teenager participates in the actions committed by a gang, then he is held criminally responsible only for those crimes for which responsibility has been established in Article 15 of the Criminal Code of the Republic of Kazakhstan since the age of 14, but not for banditry (for example, for robbery under Article 179 of the Criminal Code of the Republic of Kazakhstan).      

Based on the requirements of Part 5 of Article 31 of the Criminal Code, the actions of a person who created a gang or led it are subject to qualification, respectively, under Part 1 of Article 237 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 the gang, 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) is simultaneously a co-perpetrator of the crime.      

The actions of the organizer or the leader of the gang, who was directly involved in the crimes committed by the gang, are not subject to additional qualification under Part 2 of Article 237 of the Criminal Code.      

Participation in an armed gang, according to the clarifications of the regulatory resolution No. 2 of the Supreme Court of the Republic of Kazakhstan "On certain issues of application by courts of legislation on liability for banditry and other crimes committed in complicity" dated 06/21/2001, which provides for criminal liability under Part 2 of Article 237 of the Criminal Code of the Republic of Kazakhstan, may be expressed by joining the specified criminal formation, committing actions aimed at financing, providing weapons, transportation, searching for facilities, providing information, etc., as well as the direct commission of planned crimes.      

Participation in a gang is considered a complete crime from the moment when a person learned about the criminal nature of the gang's activities and consented to his participation (membership), regardless of whether he participated in the crimes committed.      The actions of the gang members should be qualified under Part 1 of Article 237 of the Criminal Code, as well as under the relevant articles of the Special Part of the Criminal Code for crimes in the preparation and commission of which they participated.      

A person who participated in crimes committed by a gang is liable, respectively, under Part 2 of Article 237 of the Criminal Code in cases where he was aware that he was an accomplice to a crime committed by a gang. If a person is unaware of the existence of a criminal entity, he is responsible only for the crime in which he participated.      The actions of persons who were not members of the gang and did not participate in the attacks committed by it, but who assisted the gang in its criminal activities, should be qualified as complicity in banditry.      

237 of the Criminal Code of the Republic of Kazakhstan provides for increased responsibility for banditry committed by a person using his official position, i.e. by a person serving both in government (for example, an employee of the internal affairs bodies, a military man) and in non-governmental organizations or institutions (for example, an employee of private security services, security services of various financial institutions or commercial structures, etc.).      

If banditry is associated with the murder of the victim, then the qualification of the deed is subject to the totality of crimes of Articles 96 and 237 of the Criminal Code of the Republic of Kazakhstan.      

When distinguishing banditry from other crimes, special attention should be paid to the circumstances that form the signs of banditry.      

Banditry and robbery, committed by prior agreement by a group of people with the use of weapons, differ in a set of characteristics that characterize these crimes. At the same time, banditry requires the presence of a stable bond between gang members, the organization of their actions, the preparation and planning of crimes, as well as armed forces. If it is established in the case, according to the explanations of the regulatory resolution No. 2 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 06/21/2001, that the persons specifically agreed to create a stable organized criminal group, discussed the issue of armament and acquired weapons, outlined targets for attacks on citizens And the organizations that have committed such crimes are – In such cases, the actions of the perpetrators should be qualified both under the relevant part of Article 237 of the Criminal Code and under the relevant articles of the Criminal Code providing for responsibility for the crimes committed. In other cases, in the absence of data on the creation of a stable armed criminal group, attacks on citizens and organizations, and the commission of other crimes by a group of persons by prior agreement and with the use of weapons should be qualified only under articles of the criminal Code providing for responsibility for these crimes.      

If we distinguish banditry and robbery by the elements of the crime, then the object of banditry is public safety, while the object of robbery is property. On the objective side, banditry is characterized by the creation of a stable armed group (gang), the leadership of such a group, participation in a stable armed group (gang) or in attacks committed by it. Robbery is characterized by an attack combined with violence that is dangerous to the life and health of the person being attacked, or with the threat of direct use of such violence. The composition of banditry is completed from the moment the gang is created, whereas robbery is completed from the moment of an attack for the purpose of stealing someone else's property, committed with the use of violence dangerous to life or health, or with the threat of such violence. Banditry requires gang members to have weapons, and in robbery, the presence of weapons is not a mandatory feature. These groups should also be distinguished by the purpose of committing crimes: in banditry, the purpose is to attack citizens or organizations, in robbery there is necessarily a selfish motive and the purpose is to steal someone else's property. The subject of banditry is a sane person who has reached the age of 16, while responsibility for assault begins at the age of 14 (Part 2 of Article 15 of the Criminal Code of the Republic of Kazakhstan).      

Banditry differs from the organization of an illegal paramilitary group (Article 236 of the Criminal Code) in terms of the purposes of its creation. The creation of an illegal paramilitary group does not aim to attack citizens and organizations and commit crimes.      

The difference between banditry and encroachment on the life of a state or public figure (Part 4 of Article 233 of the Criminal Code), sabotage (Article 171 of the Criminal Code) and armed rebellion (Article 169 of the Criminal Code) is that, unlike banditry, the perpetrators of these crimes pursue political goals.

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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