Commentary to article 34-1. Implementation of operational search measures of the Criminal Code of the Republic of Kazakhstan of the Criminal Code of the Republic of Kazakhstan
1. An act that has caused harm to the interests protected by this Code is not a crime if it is committed in the course of carrying out operational search activities in accordance with the law by an employee of an authorized state body or on behalf of such body by another person cooperating with that body, if this act was committed for the purpose of preventing, detecting, disclosing or investigating crimes committed by a group of persons, a group of persons by prior agreement, an organized group, or a criminal community (criminal organization), and also if the harm caused to law enforcement interests is less significant than the harm caused by these crimes, and if their prevention, disclosure or investigation, as well as the exposure of those responsible for the crimes could not have been carried out in any other way.
2. The provisions of the first part of this article shall not apply to persons who have committed acts involving a threat to human life or health, an environmental disaster, a public disaster or other grave consequences. The Law of the Republic of Kazakhstan "On Amendments and additions to certain Legislative acts of the Republic of Kazakhstan on strengthening the fight against organized crime and Corruption" adopted on March 16, 2001. A new, seventh circumstance has been introduced into the Criminal Code of the Republic of Kazakhstan, excluding the criminality of the act - "The implementation of operational search measures (Articles 34-1 of the Criminal Code). This novel of the criminal law is presented as follows:
1. An act that has caused harm to the interests protected by this Code is not a crime if it is committed in the course of carrying out operational search activities in accordance with the law by an employee of an authorized state body or on behalf of such body by another person cooperating with that body, if this act was committed for the purpose of preventing, detecting, uncovering or investigating crimes committed by a group of persons by prior agreement, an organized group or a criminal community (criminal organization), and also if the harm caused to law enforcement interests is less significant than the harm caused by these crimes, and if their prevention, disclosure or investigation, as well as the exposure of those responsible for the crimes could not have been carried out in any other way.
2. The provisions of the first part of this article shall not apply to persons who have committed acts involving a threat to human life or health, an environmental disaster, a public disaster or other grave consequences.
For the effective application of criminal legislation, it is necessary to clarify the conditions for the legality of the above-mentioned circumstance, which excludes the criminality of the act.
Based on the content of the name, this circumstance, which excludes the criminality of the act, is associated with the implementation of operational investigative measures. In accordance with Article 11 of the Law of the Republic of Kazakhstan "On Operational Search Activities" dated September 15, 1994, operational search measures are understood as "actions of bodies engaged in operational search activities, within their competence, aimed at solving the tasks provided for in Article 2 of this Law."
As indicated in Part 1 of Article 34-1 of the Criminal Code of the Republic of Kazakhstan, operational search activities can be carried out by only two groups of subjects.:
1. employees of the authorized state body;
2. by other persons cooperating with these bodies, and only on behalf of such body.
In accordance with Article 6 of the above-mentioned Law of the Republic of Kazakhstan "On Operational search activities", currently the bodies authorized to carry out operational search activities include:
a) internal affairs bodies;
b) national security agencies;
c) military intelligence agencies;
d) financial police authorities;
e) the security service of the President of the Republic of Kazakhstan.
The second group of subjects of operational search activities is formed by other persons cooperating with the above-mentioned state bodies. Any persons belong to this category of subjects of operational search activities, but they must act on behalf of employees authorized to carry out operational search activities and cooperate with them.
Thus, the first condition for the legality of carrying out operational search activities, in accordance with art. 34-1 of the Criminal Code of the Republic of Kazakhstan, is to determine the circle of persons authorized to carry out such activities.
34-1 of the Criminal Code of the Republic of Kazakhstan, operational investigative measures should be carried out only for the purpose of preventing, detecting, uncovering or investigating crimes. Therefore, if a person commits acts for another purpose, then such behavior is not recognized as a circumstance that excludes the criminality of the act.
Consequently, the second condition for the legality of operational search activities, in accordance with art. 34-1 of the Criminal Code of the Republic of Kazakhstan, is the purpose of such activities - the prevention, detection, disclosure or investigation of crimes.
The implementation of operational search measures will be recognized as a circumstance excluding the criminality of an act only if such measures were carried out in relation to crimes committed with various forms of complicity provided for in Article 31 of the Criminal Code.:
a group of persons; a group of persons by prior agreement; an organized group; a criminal community (criminal organization).
Thus, criminal legislation allows the implementation of MPM (Articles 34-1 of the Criminal Code of the Republic of Kazakhstan) only in group crime. Based on the content of Articles 34-1 of the Criminal Code of the Republic of Kazakhstan, the implementation of MPM, as circumstances precluding criminality, is impossible in the commission of individual criminal activity. This provision should be recognized as the third condition for the legality of operational search activities.
As stated in art. 34-1 of the Criminal Code of the Republic of Kazakhstan, harm in the implementation of OPM is caused to legally protected interests. This provision indicates that interests that are not protected by current legislation do not fall within the scope of criminal law. Thus, when implementing OPM, harm is caused only to law-enforcement interests. This feature is the fourth condition for the legality of operational search activities.
In article 34-1 of the Criminal Code of the Republic of Kazakhstan, the implementation of operational investigative measures is recognized as a circumstance precluding criminality of an act only if the harm caused by the actions of the person carrying out the OPM should be less significant than the harm caused by group crimes. Thus, this provision can be recognized as the fifth condition for the legality of the implementation of MPM. Therefore, if the person carrying out the OPM causes harm greater or equal to the law-enforcement interests than the harm caused by group crime, then the actions of this person cannot be recognized as a circumstance excluding criminality of the act.
In order to recognize the implementation of MPM as a circumstance precluding the criminality of an act, it is necessary that the prevention, disclosure or investigation of group crimes and the exposure of perpetrators could not be carried out in any other way. Thus, the legislator recognizes that the implementation of MPas is the only way to achieve this goal. If there were other ways to achieve the goal, and the person did not use these methods, then the actions of such a person cannot be recognized as a circumstance precluding criminality of the act. This provision should be recognized as another condition for the legality of the implementation of MPas.
34-1 of the Criminal Code of the Republic of Kazakhstan states that a person's actions are not recognized as a circumstance precluding criminality of an act if the actions committed by him involve a threat to human life or health, an environmental disaster, a public disaster or other grave consequences. This requirement can also be recognized as a condition for the legality of the implementation of MPM.
Thus, taking into account the above, all the conditions for the legality of OPM implementation can be divided into two groups :
1. The conditions of legality related to the operational search activity;
2. The conditions of legality related to the harm caused during the commission of the OPM.
The first group of conditions of legality includes:
1) a limited number of persons who have the right to carry out OPM;
2) the purpose of OPM is to prevent, detect, disclose or investigate crimes;
3) MPas are carried out only in group crime;
The second group of conditions of legality includes:
1) harm in the implementation of OPM is caused only to law-enforcement interests;
2) causing harm is the only way to achieve the goal.;
3) the harm caused by the actions of the person carrying out the OPM should be less significant than the harm caused by a group crime;
4) the harm caused during the implementation of the OPM should not be associated with a threat to human life or health, an environmental disaster, a public disaster or other grave consequences.
The implementation of operational search measures should be distinguished from an emergency.
The source of violation of the legitimate interests of citizens, society, and the state, which creates a state of extreme necessity, can be, unlike its source in the implementation of MPM, not only human actions, but also the natural forces of nature, animal attacks, physiological processes, malfunction of mechanisms, a conflict of two duties, and others. When carrying out OPM, the source of danger is criminal activity carried out in a group of persons, a group of persons by prior agreement, an organized group or a criminal community.
Actions of persons, if absolutely necessary, are carried out in order to eliminate a danger that directly threatens the life, health, rights and legitimate interests of a person in a state of extreme necessity, as well as other persons, the interests of society or the state. Actions in the implementation of MPM are aimed at carrying out operational investigative measures in accordance with the law in order to prevent, detect, disclose or investigate crimes committed by a group of persons, a group of persons by prior agreement, an organized group or a criminal community.
Actions of persons in a state of extreme necessity can take place only at the moment of an immediate threat, that is, the danger must be present, directly threatening the protected interests. Therefore, both past and future danger do not form a state of extreme necessity. The actions of persons carrying out MPM take place before the commission of a crime, at the time of the commission of crimes, as well as after its commission, at the stage of prevention, detection, disclosure or investigation of crimes. This is due to the fact that even if harm has already been done to protected interests, the danger will not pass until the person who committed the crime is brought to criminal responsibility and punished.
Any person can be a subject of extreme necessity, since the implementation of an act of extreme necessity is a subjective right of a citizen. The range of subjects entitled to exercise OPM is strictly defined by Law. According to Article 6 of the Law "On Operational Investigative Activities", these include authorized employees of: internal affairs bodies; national security bodies; military intelligence bodies of the Ministry of Defense; Financial Police Agency; Security Service of the President of the Republic of Kazakhstan; bodies of the penitentiary system of the Ministry of Justice. This list can be changed or supplemented only by law. Along with the employees of the authorized state body, the persons authorized to carry out MPM include other persons cooperating with authorized state bodies and acting on behalf of these bodies. These may be any citizens who, with their consent, are involved in the preparation and conduct of an OPM, while maintaining, at their request, the confidentiality of cooperation with bodies engaged in operational investigative activities. Government agencies that carry out ARDS may conclude cooperation contracts with adults with legal capacity, regardless of their citizenship, gender, social position and property status, education, membership in public associations, political and religious beliefs.
The essential difference lies in the object of the encroachment. The list of objects that may be harmed in a state of extreme necessity has not been specified by the legislator. Harm can be caused to the property interests of individuals, organizations or the state, to the health and even to the lives of citizens. When, as in the implementation of MPM, the actions of persons who have committed acts involving a threat to human life or health, an environmental disaster, a public disaster or other grave consequences are considered criminal.
The implementation of operational search measures as a circumstance excluding the criminality of the act should be distinguished from the detention of the person who committed the encroachment.
The range of subjects in the implementation of MPM is much narrower than when detaining a person who has committed an encroachment. The list of subjects authorized to carry out operational investigative activities is strictly defined by law. These are employees of an authorized state body or, on behalf of such a body, other persons cooperating with this body. Along with specially authorized persons, victims and other citizens also have the right to detain a person who has committed an encroachment.
33 of the Criminal Code is carried out against a person who has committed any crime. An operational search event is conducted against persons who commit or have committed a crime in one of the forms of complicity.
According to Article 33 of the Criminal Code, only a criminal can be an object that can be harmed during detention. Harm can be caused to the detainee's property interests, health, and even the life of the criminal.
When carrying out operational investigative measures, it will be lawful to harm objects of criminal law protection only if it does not involve a threat to human life or health, an environmental disaster, a public disaster or other grave consequences.
Detention occurs after the commission of a crime, whereas MPas are carried out both before and after the commission of a crime. Excess of measures in the implementation of MPas is the infliction of equal, and even more so greater harm relative to the harm being prevented. Excess of measures during the detention of a person who has committed an encroachment is recognized as their obvious inconsistency with the nature and degree of public danger of the crime committed by the detained person and the circumstances of detention, when obviously excessive harm is caused unnecessarily, not caused by the situation. Such an excess, according to Article 33 of the Criminal Code, entails criminal liability only in cases of intentional harm. Revealing the meaning of the above, we can conclude that it is permissible to cause equal harm, but only if the situation of detention required it.
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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