Commentary to article 28. Types of accomplices to a crime The Criminal Code of the Republic of Kazakhstan of the Criminal Code of the Republic of Kazakhstan

     1. Along with the perpetrator, the organizer, the instigator and the accomplice are recognized as accomplices of the crime.      

2. An executor is a person who has directly committed a crime or who has directly participated in its commission together with other persons (co-executors), as well as a person who has committed a crime through the use of other persons who are not subject to criminal liability due to age, insanity or other circumstances provided for in this Code, as well as through the use of persons who have committed an act based on carelessness.      

3. An organizer is a person who organized the commission of a crime or directed its execution, as well as a person who created or directed an organized criminal group or criminal community (criminal organization).      

4. An instigator is a person who has induced another person to commit a crime by persuasion, bribery, threat or other means.      

5. An accomplice is a person who assisted in the commission of a crime by giving advice, instructions, providing information, tools or means of committing a crime, or removing obstacles to the commission of a crime, as well as a person who promised in advance to conceal the perpetrator, tools or other means of committing a crime, traces of a crime, or objects obtained by criminal means, as well as a person who promised in advance to acquire or sell such items.      

Criminal law does not make the decision on the degree of responsibility of a person unconditionally dependent on the function performed by him in a crime committed jointly with other persons. The task of individualizing responsibility is solved differently: by defining the types of accomplices, that is, by revealing in general the signs of criminal activity of each of the accomplices, criminal law gives the court the opportunity to identify the nature of the activities of any accomplice and the degree of public danger of his activities in the commission of a specific crime.      

Each of the accomplices contributes to the common cause, i.e. has some share in it. The objective side of the composition of a specific crime is performed only by the perpetrator.      

According to the nature and degree of participation of two or more persons in the commission of a crime, the legislator defines four types of accomplices: the perpetrator, the organizer, the instigator and the accomplice. At the same time, the nature of participation should be understood as the qualitative side of the actions performed by a particular person, i.e., what specifically expressed the socially dangerous act of the person. The degree of participation refers to the actual role of each of the accomplices in achieving their intended criminal outcome.      

By defining in Part 1 of Article 28 of the Criminal Code of the Republic of Kazakhstan that the organizer, instigator, accomplice, and legislator are recognized as accomplices of a crime along with the perpetrator, the legislator thereby consolidated the accessory nature of complicity. The content of the accessory theory of complicity is that the key figure in complicity is the performer. Without the perpetrator, there can be no question of any complicity, whereas without an organizer, accomplice, or instigator, it is possible (for example, the commission of a crime characterized by the presence of two or more perpetrators, by a group of persons without prior agreement).      

Until the perpetrator begins his actions, the socially dangerous acts of the organizer, instigator, and accomplice cannot be qualified as complicity.      

In cases where the organizer, instigator, or accomplice failed to get the perpetrator to commit the crime they desired, there is no complicity in the crime, but an institution of the stages of committing an intentional crime.       The definition of the types of accomplices is the establishment of an individual role for each of them. The perpetrator is a person who directly committed a crime or directly participated in its commission together with other persons (co-perpetrators), as well as a person who committed a crime through the use of other persons who are not subject to criminal liability due to age, insanity or other circumstances provided for by the Criminal Code of the Republic of Kazakhstan, as well as through the use of persons who committed the act negligently (part 2 of Article 28 of the Criminal Code).      

The perpetrator of the crime must comply with both the general requirements of the criminal law - to be sane and have reached the age at which criminal liability is possible, and the special requirements of specific components of the Special part, that is, to have the necessary signs of a special subject of the crime. In other words, a performer participating in a joint activity can only be a person who has all the characteristics of an individual performer.      

The actions of the perpetrators are qualified directly under the article of the Criminal Code, which provides for the composition of the crime carried out by the perpetrator. There may be exceptions to this rule when there are several performers. In these cases, it is not necessary to qualify their actions according to the same norm, part of the article. For example, one perpetrator committed a murder for the first time, and the other for the second time. The actions of the former will be qualified under Part 1 of Article 96 of the Criminal Code, and the actions of the latter fall under the criteria provided for in paragraph "h" of Part 2 of art. 96 of the Criminal Code, if he was previously convicted of murder (with the exception of acts provided for in Articles 97-100 of the Criminal Code).      

If one perpetrator participated in the commission of a crime, and other persons participated as an organizer, instigator or accomplice, then the actions of the perpetrator in these cases, depending on the presence of other qualifying features, should be qualified directly under the relevant paragraphs, parts of the article providing responsibility for this crime, and the actions of other accomplices - with reference to art. UK.       In addition to direct execution and co-execution, the legislator identifies another type, the so-called mediocre execution, when a person uses it to commit a crime.:

1) insane persons;

2) persons who have not reached the age of criminal responsibility and 3) persons who acted negligently. At the same time, the execution of a crime should be understood not only as the direct commission of acts that constitute a crime and not only the use of various kinds of objects, devices, mechanisms, etc. for this purpose, but also the use of animals and even humans in the so-called mediocre infliction, that is, when using humans as a weapon of crime.      

Thus, the perpetrator of a crime will be recognized as the person who uses insane persons to commit a crime (who are not aware of what is happening and did not direct their actions - art.16 of the Criminal Code); who uses persons who have not reached the age from which, according to part 2 of art.15 of the Criminal Code, criminal liability begins (for example, when using minors teenagers under the age of 14).      

This provision is fixed in the Normative Resolution "On Judicial Practice in cases of Embezzlement" dated July 11, 2003 (with the following amendments and additions), where in paragraph 10 the Supreme Court of the Republic of Kazakhstan clarifies that "an act intentionally committed together with a person who did not commit a crime cannot be regarded as committed by a group of persons by prior agreement. who has reached the age from which criminal responsibility for this crime begins, or with a person who has been declared insane. In these cases, the person recognized as the subject of the crime must be recognized as the perpetrator of the theft and, in addition, if there are grounds for that, his actions must additionally qualify as involving a minor in criminal activity under Article 131 of the Criminal Code.      

Mediocre infliction is impossible in crimes where the law provides for a special subject. Here it is necessary to understand situations when a person cannot be brought to criminal responsibility as an executor due to the fact that he does not have the characteristics of a special subject of a crime. Mediocre infliction is impossible in so-called self-inflicted torts (desertion).      

An organizer is a person who organized the commission of a crime or directed its execution, as well as a person who created or directed an organized criminal group or criminal community (criminal organization) (Part 3 of Article 28 of the Criminal Code). The organizer is the most dangerous participant in a joint criminal activity.       The activity of the organizer of the criminal community is characterized by certain signs. The organizer, acting as the initiator of the creation of a criminal community, first of all, inclines people to participate in it, directs the efforts of other accomplices to achieve a criminal result, unites them by maintaining a certain corporate discipline by force of his authority and other methods, develops forms of communication between the members of the organization, that is, creates a criminal organization. The organizer develops a plan for criminal activity, outlines a way to implement it, distributes roles among members of the community, that is, directs the organization's activities to prepare a crime. Through his activities, the organizer increases the criminal power of his accomplices and their danger. Finally, the organizer manages the members of the organization directly during the implementation of criminal attacks.      

In order to recognize a person as an organizer, it is not necessary for him to carry out all of these types of organizational activities, on the contrary, it is enough to carry out any of them.      

Organizational activity is possible both within the criminal community and in the commission of individual crimes. Organizational activities are always carried out with criminal intent. The organizer is aware of the group's goals and methods of achieving them, anticipates that crimes will be committed as a result of his activities, and desires this.      

A person who has created or is leading an organized group or criminal community (criminal organization) is subject to criminal liability for their organization and leadership in the cases provided for in Part 1 or 2 of Article 235 of the Criminal Code of the Republic of Kazakhstan, as well as for all crimes committed by an organized group or criminal community (criminal organization), if they were covered by his intent. Other members of an organized group or criminal community (criminal organization) are criminally liable for participation in these crimes in cases provided for in the relevant articles of the Special Part of the Criminal Code of the Republic of Kazakhstan, as well as for all crimes in which they participated in the preparation or commission (Part 5 of art.31 of the Criminal Code). 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 cases when the organizer (leader) was simultaneously an accomplice to the crime committed.      

In accordance with Part 6 of Article 31 of the Criminal Code, the creation of an organized group in cases not provided for in the articles of the Special Part entails criminal liability for preparing for the crimes for which it was created.       The actions of the organizer or the leader of a gang or criminal community who was directly involved in the crimes committed by the gang or criminal community are not subject to additional qualification under Part 3 of Article 235 or Part 2 of Article 237 of the Criminal Code (paragraph 15 of the Regulatory Decree 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).       According to paragraph 16 of the aforementioned Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated June 21, 2001, a person who participated in crimes committed by a gang or a criminal community is liable under Part 3 of Article 235 or Part 2 of Article 237 of the Criminal Code, respectively, in cases where he was aware that he was an accomplice to this crime. If a person is unaware of the existence of a criminal entity, he is responsible only for the crime in which he participated. According to the same rules, the actions of these persons in relation to committed crimes are qualified by the qualifying criterion "commission of a crime by an organized group".       An instigator is a person who has persuaded another person to commit a crime by persuasion, bribery, threats or other means (Part 4 of Article 28 of the Criminal Code). By inciting the perpetrator to commit a crime, the instigator himself does not take part in it. Anyone who combines incitement to a crime with participation in its direct commission (the initiator) is liable as an executor, and his actions to incite to commit a crime are assessed as factual circumstances characterizing the degree of his participation in the commission of a crime.      

Incitement is characterized, first of all, by the commission of such an action, which is objectively aimed at arousing the perpetrator's determination to commit a specific crime. Incitement is always about action. Inaction, under certain conditions, can contribute to the commission of a crime and thus refers to complicity, but inaction cannot be induced to commit a crime. Even in cases where inaction conceals authoritative approval of the perpetrator's criminal determination and the fate of the criminal act itself depends on the position of the inaction, so that his "no" alone would be an insurmountable obstacle to the commission of the crime, we can only talk about intellectual complicity - strengthening the determination to commit a crime, but not about incitement.      

The causal connection between the actions of the instigator and the final result of the joint activities of the participants in the crime is a prerequisite for objective signs of incitement. In incitement, the causation process has as its starting point the action of the instigator, in other words, causality begins with the instigator's influence on the will and consciousness of the perpetrator. The first result of this influence is the emerging determination of the perpetrator to commit a certain crime. The next link in the development of the causality process in incitement is the act committed by the perpetrator - an action or omission directly aimed at carrying out the crime. In this way, a causal relationship is established between the instigator's action and a specific socially dangerous result, forming an objective prerequisite for the instigator's responsibility for this result. The degree of responsibility of the instigator depends on how significant his role was in inducing another person to commit a crime.      

Incitement consists in inducing the commission of a crime. This means that for incitement to exist, it does not matter whether the instigator is the author of the criminal intent or perceived it from a third party. The actions used to incite a crime can be diverse: bribery, threats, requests, and so on. The activities of the instigator should be aimed at arousing the perpetrator's determination to commit one or more specific crimes. The negative influence of one person on another, the arousal of base feelings, aspirations and similar activities, under certain conditions, should entail criminal liability for an independent crime.      

Incitement is always committed intentionally. The instigator anticipates the socially dangerous nature of his actions and their consequences. He inclines the perpetrator to commit a crime, willing or consciously assuming that the perpetrator, under his influence, will decide to do so.      

An accomplice is a person who assisted in the commission of a crime by giving advice, instructions, providing information, tools or means of committing a crime, or removing obstacles to the commission of a crime, as well as a person who promised in advance to conceal the perpetrator, tools or other means of committing a crime, traces of a crime, or objects obtained by criminal means, as well as a person who promised in advance to purchase or sell such subjects (part 5 of Article 28 of the Criminal Code).      

By assisting the perpetrator, the accomplice thereby encroaches on specific public relations protected by criminal law, and it is this circumstance that determines the social danger of the act he commits. In each case, the degree of public danger of the accomplice's act depends, firstly, on the nature of the public relations that were attacked, and, secondly, on the importance of the assistance provided to achieve a criminal result.      

Minor assistance in the commission of a crime that does not pose a great danger does not constitute signs of complicity. It is appropriate here to cite the provision set out in Part 2 of Article 9 of the Criminal Code of the Republic of Kazakhstan, which states that an act or omission is not a crime, although it formally contains signs of an act provided for in the Criminal Code of the Republic of Kazakhstan, but due to its insignificance it does not pose a public danger, that is, it has not caused harm and has created a threat of harm to a person., society or the state.      

The list of ways to provide assistance contained in the legislative definition of complicity is exhaustive. Aiding and abetting can be carried out by: giving advice; giving instructions; providing funds; removing obstacles; promising to conceal: the criminal, the instruments and means of committing a crime, traces of a crime, or items obtained by criminal means; promising to purchase or sell such items.      

So, in advance, before committing a crime, a promise given to the performer not to hinder him or inform about him, or to purchase or sell items obtained by criminal means, strengthens the performer's determination to commit a crime. This promise should be considered as complicity, being in fact the removal of obstacles to the commission of a crime.      

According to paragraph 29 of the resolution of the Plenum of the Supreme Court of the Republic of Kazakhstan "On the observance by courts of legality in the imposition of criminal punishment" dated April 30, 1999. recognizing that the court's conclusions about the scope of the charge, the form of guilt or complicity of the convicted person in the commission of a crime, the presence of aggravating circumstances and punishment are incorrect, and making appropriate changes to the sentence in this regard (for example, excluding an episode of the charge or one or more aggravating circumstances, recognizing the person as an accomplice rather than a co-perpetrator of the crime, considering his actions show signs of preparation for a crime or an attempt on it, rather than a completed crime), The court of cassation or supervisory instance should discuss the possibility or necessity of reducing the sentence to the convicted person and provide in the decision the reasons for the decision.      

Depending on the type of assistance provided, aiding and abetting can be physical or intellectual. Physical assistance consists in providing the perpetrator with the material resources necessary to commit a crime or in removing obstacles to the commission of a crime, for example, in providing weapons for murder or assault, in providing vehicles for theft, etc.      

Intellectual aiding and abetting consists in giving the perpetrator advice and guidance that contributes to the crime, such as directions on where to purchase weapons for murder, how to break into a storage facility for theft, and so on, as well as strengthening the perpetrator's resolve to commit a crime.      

Intellectual complicity is a promise made in advance, prior to the commission of a crime, to conceal the perpetrator or traces of the crime, not to inform about the impending crime or not to prevent its commission.       Since assistance to the performer in case of promised concealment, non-denunciation and connivance consists precisely in a promise that strengthens the performer's resolve, the content of the activities of these persons does not consist in actions or omissions following the promise, but in the fact of the promise. Failure to fulfill a promise - a refusal, for example, to shelter a criminal after committing a crime - can be taken into account when determining punishment, but does not exclude complicity in the crime.      

Intellectual complicity can only be expressed in the commission of certain actions, physical complicity can also be expressed in inaction (this refers to the case when a person who is obliged to prevent the commission of a crime in the case of a special legal obligation is deliberately inactive and thereby, in essence, removes an obstacle to the implementation of criminal activities).      

Aiding and abetting always turns out to be the criminal activity of a certain person or group of people. It is possible in relation to the activities of not only the perpetrator, but also other accomplices: organizers, instigators and accomplices. Like incitement, aiding and abetting can only be in relation to a specific crime. At the same time, it is sufficient if, in the view of an accomplice, the crime he is assisting is outlined by vague signs, but in general, relatively certain features.      

An accomplice assists the perpetrator in committing a crime, creating by his actions a real possibility of its implementation. Thus, the act of an accomplice is included in the general causal series, causing the onset of a certain socially dangerous act. Causing a socially dangerous result by an accomplice is an objective prerequisite for responsibility for it. The requirement of a causal relationship between the act of an accomplice and the criminal result that has occurred leaves outside of complicity, and therefore complicity, all actions that are somehow related to the commission of a crime, but are not assistance to the commission. In particular, therefore, non-promised concealment cannot be considered as complicity.             In order to recognize a person as an accomplice, it is necessary to establish not only the causal relationship between the actions of this person and the actions committed by the perpetrator of the crime, but also the existence of intent aimed at such assistance. Negligent complicity with the perpetrator of a crime does not constitute signs of complicity.

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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