Commentary to article 250. Smuggling of items withdrawn from circulation or items whose circulation is restricted by the Criminal Code of the Republic of Kazakhstan of the Criminal Code of the Republic of Kazakhstan
1. Movement across the customs border of a State committed in addition to or with concealment from customs control or with the deceptive use of documents or means of customs identification, or involving the non-declaration or unreliable declaration of narcotic drugs, psychotropic, potent, poisonous, toxic, radioactive and explosive substances, weapons, military equipment, explosive devices, firearms and ammunition, nuclear, chemical, biological and other types of weapons of mass destruction, materials and equipment, which can be used to create weapons of mass destruction, -
is punishable by imprisonment for a term of up to five years with or without confiscation of property.
2. The same act committed by:
a) repeatedly;
b) by an official using his official position;
c) using violence against a person exercising customs control, -
d) a group of persons by prior agreement, -
is punishable by imprisonment for a term of seven 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 an organized group or a criminal community (criminal organization), -
are punishable by imprisonment for a term of ten to fifteen years with confiscation of property.
The public danger of a crime lies in the fact that the uncontrolled turnover of items withdrawn from circulation or items whose circulation is restricted is fraught with a high degree of danger of harming people, the environment, the interests of society and the state.
The object of the crime is public safety in the field of regulating customs regulations in relation to items that have been withdrawn from circulation or whose circulation is restricted; an additional object is human health and management procedures. In accordance with the Resolution of the Plenum of the Supreme Court of the Republic of Kazakhstan "On the practice of applying legislation on criminal liability for smuggling" dated July 18, 1997 (as amended the subject of the crime is narcotic drugs, psychotropic, highly potent, poisonous, poisonous, radioactive or explosive substances, weapons, military equipment, explosive devices, firearms and ammunition, nuclear, chemical, biological and other types of weapons of mass destruction, materials and equipment that can be used to create weapons of mass destruction. In other words, items that have been withdrawn from civil circulation, or whose turnover is limited by special rules. The regulatory framework defining the signs of items withdrawn from circulation or whose turnover is limited includes the Law of the Republic of Kazakhstan "On State Control over the Turnover of Certain Types of Weapons in the Republic of Kazakhstan" of 1998 (with amendments and additions). dated 22.02.2002 and 20.12.2004) The Law "On Narcotic Drugs, Psychotropic Substances, Precursors and Measures to counteract their Illicit Trafficking and Abuse" dated 10.07.1998, (as amended. changes and additions) as well as other regulations.
The objective side of the crime is expressed in the illegal movement across the customs border of items that have been withdrawn from circulation or whose circulation is restricted, under the following circumstances: 1) in addition to or with concealment from customs control; 2) with the fraudulent use of documents or means of customs identification; 3) involving non-declaration or false declaration of transported items.
The concept of a customs border is defined by the Customs Code of the Republic of Kazakhstan dated 04/3/2003.
In accordance with the Resolution of the Plenum of the Supreme Court of the Republic of Kazakhstan "On the practice of applying legislation on criminal liability for smuggling" dated 18.07.1997 (as last amended and supplemented) illegal movement of items withdrawn from circulation or items whose circulation is restricted can be carried out both by importing and exporting them from this territory.
Import and export should be understood as the movement of contraband items by any means (transportation or shipment by any type of transport, including by air, mail, carrying in hands, in clothing pockets, in the form of hand luggage, etc.).
Illegal movement is carried out both at checkpoints and in other places designated by law for border crossing (under the guise of legal movement), and outside these places (illegally).
Concealment from customs control consists in concealing items that have been withdrawn from circulation or items whose circulation is restricted, using hiding places or other methods during their transportation that make it difficult to detect them, or in making some items look like others.
In addition to customs control, the movement of contraband items consists in their transfer and transportation outside customs posts, checkpoints and other places designated by the legislation and customs authorities of the Republic of Kazakhstan for customs clearance, or outside the time set for its production. Concealment from customs control is understood as failure to inform the customs authorities about the presence of these items or disguising them as other goods, the turnover of which is not limited when moving the above-mentioned items across the customs border.
Deceptive use of customs and other documents or means of customs identification implies the presentation to customs authorities, as well as to persons exercising border control, of invalid, illegally obtained, forged and also containing false information documents, the use of forged seals, seals, stamps and other similar means of customs identification, or the presentation of a genuine means of identification related to other objects.
Non–declaration or unreliable declaration is the failure to fulfill or improper fulfillment of the obligation to file a customs declaration in accordance with the rules established by law in relation to prohibited or restricted items or items withdrawn from circulation.
The composition of this crime is formal. The crime is considered completed: upon import and export, carried out legally, from the moment of direct border crossing.;
for imports carried out under the guise of legal transfer - from the moment of completion of customs clearance, and for items for which special rules are established - from the moment of completion of the border control procedure; for exports carried out under the guise of legal transfer - from the moment of completion of customs clearance. Criminal liability for the commission of the above-mentioned actions occurs regardless of the size and quantity of contraband items.
The subjective side of the crime is characterized by an intentional form of guilt in the form of direct intent. The person is aware of the social danger of his actions, anticipates the possibility and inevitability of socially dangerous consequences and desires their occurrence.
The subject of the crime is a sane individual who has reached the age of 16.
Part 2 of Article 250 of the Criminal Code of the Republic of Kazakhstan provides for liability for the qualified type of this crime committed:
a) repeatedly;
b) by an official using his official position;
c) using violence against a person exercising customs control,
d) a group of persons by prior agreement.
Repetition should be understood as the commission in any sequence of two or more crimes provided for in Article 250 of the Criminal Code of the Republic of Kazakhstan or part of Article 250 of the Criminal Code of the Republic of Kazakhstan, if a person has not been released from criminal liability for previously committed crimes, or a criminal record for them has not been withdrawn or extinguished.
An official who has committed smuggling using his official position should be considered a person who is obligated to carry out customs or border control, appropriate actions to inspect goods or other valuables and objects transported across the customs border of the Republic of Kazakhstan and give permission to cross the border.
Smuggling committed by such officials using their official position does not require additional qualifications under the articles of the criminal law on official offenses.
The use of violence against a person exercising customs control is understood as intentional infliction of minor or moderate harm to health. A crime is considered to have been committed by a group of persons by prior agreement if it involved persons who had previously agreed to commit a crime together.
The subject of the crime under paragraph "b" of Part 2 of Article 250 of the Criminal Code of the Republic of Kazakhstan is a special subject – an official.
250 of the Criminal Code of the Republic of Kazakhstan provides for liability for smuggling committed by an organized group, a criminal community (criminal organization).
An organized group is understood as a stable group of persons who have previously united to commit smuggling of items that have been withdrawn from circulation, or whose circulation is restricted, or other crimes.
A crime is recognized as committed by a criminal community (criminal organization) if it is committed by a cohesive organized group (organization) created to commit grave and especially grave crimes, or by an association of organized groups created for the same purposes.
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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