Commentary to article 24. Preparation for a crime and attempted crime The Criminal Code of the Republic of Kazakhstan of the Criminal Code of the Republic of Kazakhstan

Home / RLA / Commentary to article 24. Preparation for a crime and attempted crime The Criminal Code of the Republic of Kazakhstan of the Criminal Code of the Republic of Kazakhstan

1. Preparation for a crime is recognized as the search for, manufacture or adaptation of means or instruments of a crime committed with direct intent, the search for accomplices in a crime, or conspiracy to commit a crime if the crime was not completed due to circumstances beyond the control of the person. 2. Criminal liability is imposed for preparing only for a grave or especially grave crime.

3. An attempt to commit a crime is considered to be actions (inaction) committed with direct intent, directly aimed at committing a crime, if the crime was not completed due to circumstances beyond the control of the person.

4. Criminal liability is imposed for an attempt only on a crime of moderate gravity, grave or especially grave crime.

5. Criminal liability for preparation for a crime and attempted crime shall be imposed under the same article of this Code as for a completed crime, with reference to the relevant part of this article. Regardless of the stage of development of an act provided for in criminal law, it is covered by the concept of a crime. However, it is quite obvious that from the point of view of public danger, the later stages in the development of criminal activity pose a great danger.

If, in the case of a completed crime, the intention of the perpetrator is fully realized in the committed actions and their consequences, then in the case of preparation and attempt, this full realization of intent is not present.

The Criminal Code of the Republic of Kazakhstan clearly distinguished preparation and attempt into two stages of criminal activity and gave a detailed definition of each of these stages (Parts 1, 3 of art.24 of the Criminal Code). Article 25 of the Criminal Code defines a completed crime.

The stages of preparation and attempted murder (as opposed to the completed crime) are usually combined under the name of preliminary criminal activity.

The criminal legislation of the Republic of Kazakhstan proceeds from the fact that in cases where an unlawful act is in the process of being carried out, it is also significantly dangerous and criminal.

Before starting an intentional criminal activity, a person imagines the nature and outcome of the crime. This determines the method and nature of his activities aimed at the realization of criminal intent. However, the process of thinking about an upcoming crime is an internal process that takes place in the psyche of a person. Others do not know about him until he has manifested himself externally through certain actions.

The formation of criminal intent cannot be considered as a stage in the development of criminal activity. This provision is not based on the current criminal legislation.

Under current criminal law, criminal thoughts, moods, and even the intention to commit a crime, even if expressed in one form or another and made known to outsiders (the so-called detection of intent), do not in themselves entail criminal liability.

The correct definition of the stages of commission of an intentional crime is important in the activities of law enforcement agencies to distinguish the completed from the unfinished crime and, consequently, for the correct qualification of the deed, as well as to determine the degree of public danger of the committed actions and the identity of the perpetrator, because a completed crime is usually more dangerous than an attempt, and an attempt is more dangerous than preparation. In addition, the establishment of a specific stage allows the court to individualize the punishment imposed on the perpetrator in accordance with the law.

"Preparation for a crime is the search for, manufacture or adaptation of means or instruments of a crime committed with direct intent, the search for accomplices in a crime, conspiracy to commit a crime or other deliberate creation of conditions for the commission of a crime, if the crime was not completed due to circumstances beyond the control of the person's will" (Part 1 of Article 24 of the Criminal Code).

Preparation should be understood as any deliberate activity aimed at creating conditions for the commission of a crime. For example, the purchase of weapons for murder, the inspection of a place where it is possible to enter a building to commit theft, the search for accomplices in a crime, the production of cliches for printing counterfeit money, etc. Preparatory actions do not yet directly endanger legally protected public relations, they only create conditions for the possibility of achieving a criminal result in the future. Preparation is the first stage in the realization of a person's criminal intent.

As can be seen from the content of Part 1 of Article 24 of the Criminal Code, preparation from the objective side is expressed in the commission of one of the following actions:

a) the search for, manufacture or adaptation of means or instruments of crime;

b) the search for accomplices in a crime;

c) conspiracy to commit a crime;

d) other creation of conditions for the commission of a crime.

Prospecting should be understood as any method of acquiring tools or means of committing a crime. In this case, the method of searching can be both legitimate and illegal (for example, buying, loaning or obtaining weapons, other tools and means of committing a crime by theft, etc.).

The instruments of committing a crime are firearms or cold steel, as well as objects that can be used for the intended crime.

The means of committing a crime can be various objects and devices that can be used to facilitate the commission of a crime (forged documents, seals, toxic substances, sleeping pills, etc.).

Manufacturing is any action that resulted in the production of ready-to-use tools and means of crime.

The adaptation of tools and means of committing a crime should be understood as bringing them into a form and condition where these tools and means can be used to commit a crime (for example: sharpening metal objects to commit murder, preparing keys, etc.).

The search for accomplices in a crime consists in any actions related to the search and involvement of persons to commit crimes.

Conspiracy to commit a crime is characterized by a prior agreement, an agreement on the joint commission of a crime.

By creating other conditions for the commission of a crime, one should understand a variety of actions that are not covered by the listed types of preparatory actions, but create the opportunity for the subsequent commission of a crime.

The creation of conditions, for example, should be considered an examination of the place of the alleged crime (inspection of the approach or entrance of the protected object of theft, study of the guard changing system, etc.), removal of obstacles that may interfere with the crime (killing of a dog, damage to electrical appliances), etc.

Although the preparatory actions can be very diverse, they all have common features. In particular, they all precede the commission of a crime. In addition, they are less dangerous than an attempt aimed at committing a crime.

During preparation, criminal liability is imposed for preparation only for a grave or especially grave crime (Part 2 of art.24 of the Criminal Code).

The same actions in different circumstances can be considered either as preparation or as an attempt. For example, the entry of a thief into the victim's apartment should be considered as attempted theft (part 3 of art.24, paragraph "b" of Part 2 of Art.175 of the Criminal Code), and the entry of a criminal into an apartment with the purpose of murder should be qualified as preparation for murder (part 1 of art. 24, part 1 of art. 96 of the Criminal Code).

According to Part 3 of Article 24 of the Criminal Code, "an attempt on a crime is recognized as actions (inaction) committed with direct intent, directly aimed at committing a crime, if the crime was not completed due to circumstances beyond the control of the person."

Criminal liability is imposed for attempted crimes of moderate severity, grave or especially grave crimes (Part 4 of Article 24 of the Criminal Code).

An attempt is characterized by the fact that here the actions of the perpetrator are directly aimed at committing a crime. This is the difference between an attempt and a preparation, which only creates the conditions for committing a crime, but the action is not yet aimed at committing a crime.

An attempt should be considered a case when the perpetrator, with the aim of killing, shot at the victim, but missed, or tried to shoot, but someone prevented him from doing so. An attempt should be considered breaking the lock on the door of a store in order to commit theft, bringing a knife over a person's head for the purpose of murder, etc. However, in all these cases, the crime is not completed for reasons beyond the control of the perpetrator (the perpetrator gave the victim poison for the purpose of murder, but the substance was not poisonous enough, or the dose was small and death did not occur). An attempt is possible in the commission of all crimes that are material by design, i.e. in cases where the completed composition requires the onset of specific consequences. In most cases, an attempt on such crimes is committed through action, but inaction is also possible (for example, for an infant to die, the mother does not feed him; a citizen who is obligated by his job to turn off the current does not do this to cause a fire).

An attempt is also possible in some "formal" crimes. The peculiarity of an attempt in "formal" structures is that here an attempt is possible only through action (for example, giving a bribe - art. 312 of the Criminal Code, rape - art. 120 of the Criminal Code, etc.). In "formal" structures of crimes, where the act is committed through inaction (leaving in danger - art. 119 of the Criminal Code; draft evasion 174 of the Criminal Code, etc.) an attempt on a crime is impossible. An attempt is also impossible in those "formal" crimes in which the first act of criminal activity forms the completed crime. For example, robbery (Article 179 of the Criminal Code) is recognized as a completed crime from the moment of the attack, regardless of whether the purpose of the crime was achieved - theft of other people's property - or not. In case of an attempt, there is either no criminal result, or the actions are not fully performed (for example, in case of attempted theft - part 3 of art. 24, part 1 of Art. 175 of the Criminal Code, murder - part 3 of art. 24, part 1 of art. 96 of the Criminal Code, etc.), when everything has been done by the guilty, but the criminal result has not occurred, or all necessary actions have not been performed to achieve a criminal result, unlike a completed crime, in which the objective side is always endowed with all the necessary signs.

When we talk about the absence of consequences in the case of attempted crimes, this does not mean that there are no consequences at all. There may be consequences, but not the ones the perpetrator wanted. For example, the perpetrator shot to take a person's life, but caused only harm to health. In this case, there is an attempted murder (part 3 of art. 24, part 1 of art. 96 of the Criminal Code), i.e. an attempt on the crime that the person tried to commit.

In formal crimes, an attempt is also manifested in the fact that the actions specified in the law are not fully committed. So, if the proposed bribe is not accepted, the actions of the bribe giver should be qualified as an attempt to give a bribe, and the intermediary as an attempt to mediate (part 3 of art. 24, art. 312; part 3 of art. 24, art. 313 of the Criminal Code). If the already stipulated bribe was not received due to circumstances beyond the control of the recipient of the bribe, what he did should be qualified as an attempt to receive a bribe - part 3 of art. 24, art. 311 of the Criminal Code.

When attempting to commit a crime, it is always important to establish that the actions committed were aimed precisely at realizing the intent of the perpetrator. If the person's actions had a different purpose, then their commission cannot be considered an attempted crime.

On the subjective side, an attempted crime is characterized only by direct intent. This is explained by the fact that an assassination attempt always assumes the conscious and purposeful activity of the perpetrator.

In the case of so-called indefinite intent (when the criminal result is not specifically defined in the criminal's mind), the question of an attempt plays an important role in qualifying the actions of the perpetrator. For example, when trying to harm the victim's health, the perpetrator may not specify in his mind beforehand whether he has caused serious, moderate or light harm to health.

In this case, the issue of responsibility is resolved as follows:

1. If, with an indefinite intent, harm to health of a certain severity is caused, then the person must be responsible for the actual harm caused as a completed crime. For example, R., firing a hunting rifle in the direction of the walking M., anticipates the onset of socially dangerous consequences, but does not specify them, does not imagine exactly what these consequences will be. As a result, M. suffered moderate damage to his health, which was attributed to R.

2. If no harm has occurred, although an attempt has been made to cause it, then the perpetrator must be responsible for an attempt to cause minor harm to health (in the example considered, R. would be criminally liable for an attempt to intentionally cause minor harm to health. At the same time, R. in this situation is not subject to criminal liability, since for an attempt to intentionally cause minor harm to health, according to paragraph 4 of Article 24 of the Criminal Code, a person is not subject to criminal liability).

The issue of determining responsibility for an attempt committed with an alternative intent is solved somewhat differently.

With an alternative intention, the perpetrator admits the possibility of one or the other of the criminal results he foresees, while equally desiring the occurrence of any result.

If at the same time a less dangerous of the foreseen consequences occurs, then the person is not exempt from responsibility for an attempt on another, more serious consequence.: Although it did not come, the subject also wanted it to come. For example, if someone intended to kill another person or at least injure him, but in reality only wounded him, then he is liable for attempted murder (Part 3 of art. 24, part 1 of art. 96 of the Criminal Code).

So, the actions of the perpetrator can be considered an attempt if they:

1) they are directly aimed at committing a crime, i.e. the perpetrator has already directly committed or begun to commit an encroachment on the object.;

2) if these actions do not contain all the signs of the objective side of the crime that the perpetrator intended to commit, i.e. the perpetrator did not complete the crime.;

3) if the perpetrator did not complete the crime for reasons beyond his control.

In criminal law, an attempt is usually divided into unfinished and completed.

An unfinished attempt is one in which a person has not yet committed all that he considered necessary to carry out his intention. For example, a thief, in order to commit an apartment theft, put a ladder to the window, but was detained when he tried to step over the window sill (part 3 of art. 24, paragraph "b" of Part 2 of art. 175 of the Criminal Code).

An attempt is completed in which a person has done everything that he considered necessary to carry out his intention, but for some reason the result has not been received. For example, a thief entered an office building to steal money, broke into a safe, but there was no money in it.

Thus, the differences between the completed and unfinished assassination attempt are as follows:

when the attempt is completed, the perpetrator does everything that he considers necessary for the criminal result to occur, but the latter does not occur due to circumstances beyond his control.;

with an unfinished attempt, the perpetrator does not yet commit all those actions that he considers necessary to achieve a criminal result.

The division of the attempt into completed and unfinished has both theoretical and practical significance. A completed assassination attempt, as a rule, poses a greater public danger than an unfinished attempt. This circumstance is taken into account by the court when determining the measure of punishment for the perpetrator.

The division of an attempt into completed and unfinished is important for the correct solution of the issue of voluntary refusal to commit a crime: with an unfinished attempt, voluntary refusal is possible, with an completed attempt, it is not possible.

Attempts with unsuitable means are understood as such cases of attempted murder, when the perpetrator uses such means that are objectively incapable of leading to the completion of the crime and the onset of a criminal result. An attempt with unsuitable means does not absolve from responsibility. Responsibility here comes according to the rules of factual error, i.e. the qualification is based on the direction of intent as an attempted crime, since the consequences expected by the guilty do not occur.

However, it should be remembered that when the unsuitability of the means used is obvious to everyone (for example, the use of spells, witchcraft, and other means of superstition due to ignorance), the actions of the perpetrator cannot be considered socially dangerous and do not entail criminal liability.

An attempt on an unusable object is an attempt when the actions of the subject are directed either at an object that is absent at the time of the attempt, or even if it is present, but has such properties that the result desired by the perpetrator cannot occur. For example, a shot at a corpse mistaken for a living person (part 3 of art. 24, part 1 of art. 96 of the Criminal Code), an attempt to steal from an empty pocket (part 3 of art. 24, part 1 of Art. 175 of the Criminal Code), etc.

Thus, the differences between the completed and unfinished assassination attempt are as follows:

when the attempt is completed, the perpetrator does everything that he considers necessary for the criminal result to occur, but the latter does not occur due to circumstances beyond his control.;

with an unfinished attempt, the perpetrator does not yet commit all those actions that he considers necessary to achieve a criminal result.

An attempt on an unusable object, as well as an attempt with unusable means, usually entails criminal liability.

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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