Commentary to article 8 Extradition of persons who have committed a crime The Criminal Code of the Republic of Kazakhstan of the Criminal Code of the Republic of Kazakhstan

     1. Citizens of the Republic of Kazakhstan who have committed a crime on the territory of another State shall not be extradited to that State, unless otherwise established by an international treaty.      

2. Foreigners and stateless persons who have committed a crime outside the Republic of Kazakhstan and are located on the territory of the Republic of Kazakhstan may be extradited to a foreign state for criminal prosecution or serving a sentence in accordance with an international treaty of the Republic of Kazakhstan.      

Article 8 of the Criminal Code expresses the international principle of extradition of persons who have committed a crime. Extradition of persons who have committed a crime is the transfer of a person to another State for trial or execution of a sentence, carried out in accordance with international treaties and national criminal and criminal procedure legislation.       Extradition is possible only in the case of a crime, not any offense.       According to paragraph 1 of art. 11 of the Constitution of the Republic of Kazakhstan "a citizen of the Republic of Kazakhstan may not be extradited to a foreign state, unless otherwise established by international treaties of the Republic." This provision has also been consolidated in the criminal law. Thus, Part 1 of Article 8 of the Criminal Code states: "Citizens of the Republic of Kazakhstan who have committed a crime on the territory of another state are not subject to extradition to this state, unless otherwise established by international treaties." It is shared by many modern states.      

According to Part 2 of Article 8 of the Criminal Code, "foreigners and stateless persons who have committed a crime outside the Republic of Kazakhstan and are located on the territory of the Republic of Kazakhstan may be extradited to a foreign state for criminal prosecution or serving a sentence in accordance with international treaties of the Republic of Kazakhstan."      

The State in whose territory the person who committed the crime found himself acts at his discretion: either extradites the required person, or punishes him according to its laws.      

The issue of extradition arises in cases where a person who has committed a crime in one country or against the interests of that country, or who is required to serve a sentence, is located in another country. According to international practice, an extradition request is made if one of the following conditions is met::      

1) the crime was committed on its territory;      

2) the crime was directed against the interests of that State;      

3) the person who committed the crime is a citizen of that State;      

4) the execution of the sentence is necessary in relation to the person.      

The criminal law norm on the extradition of persons who have committed a crime (foreign citizens and stateless persons), provided for in Part 2 of Article 8 of the Criminal Code, competes with the norms on such principles of the criminal law in space as universal and real, enshrined in Part 4 of Article 7 of the Criminal Code. The competition lies in the fact that, in accordance with these principles, the Republic of Kazakhstan has the right to bring relevant foreign citizens and stateless persons to criminal responsibility and subject them to criminal punishment under Kazakh criminal law.  At the same time, in accordance with the specified norm, 8 of the Criminal Code on extradition of the Republic of Kazakhstan may, at the request of the interested State, extradite a foreign citizen or a stateless person in order for the interested State itself to exercise criminal jurisdiction over these persons and the crimes committed by them in this case. Consequently, a comparison of the content of these criminal law norms (Articles 7 and 8 of the Criminal Code) leads to the conclusion that competition between these norms is a kind of competition between general and special norms. In my opinion, the norm on extradition (Part 2 of Article 8 of the Criminal Code) is a special norm in relation to the norm fixed in Part 4 art. 7 of the Criminal Code. When general and special norms compete, it is decided in favor of the special one. Our proposal is supported by the fact that the issue of extradition is positively resolved in the norms of international law (in Conventions on Combating International Crimes and in Conventions on Extradition) and is confirmed by reference to Article 8 of the Criminal Code. In accordance with paragraph 3 of Article 4 of the Constitution of the Republic of Kazakhstan, international treaties ratified by the Republic take precedence over its laws and are applied directly, except in cases where it follows from an international treaty that a law is required for its application. A different solution to this issue would be contrary to common sense.      

The institution of extradition competes with the institution of political asylum. This competition is being resolved in favor of the right of political asylum.      

International treaties on the extradition of persons who have committed crimes may be multilateral or bilateral in nature. Among the first, the European Convention on Extradition of Offenders of the Council of Europe of 1957 (and two additional Protocols thereto of 1975-1978), the Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters of October 7, 2002 are of paramount importance for the Republic of Kazakhstan. and a number of multilateral conventions concluded between States to combat certain crimes to which the Republic of Kazakhstan is a party (for example, the International Convention against Hostage-taking of 1979).      

The European Convention regulates in detail the question of the categories (types) of offences, the commission of which may serve as a basis for the extradition of the person who committed them. According to it, extradition is carried out in respect of offences punishable under the laws of both the requesting and requested States by imprisonment for a period of at least one year or a more serious penalty. However, if the extradition request concerns a person who is wanted for the execution of a prison sentence or other measure of deprivation of liberty imposed on such an offender, extradition is permitted only if at least four months remain before the end of this sentence.      

 The Convention provides for restrictions on the extradition of offenders who have committed certain other categories of offences (unrelated to the type and size of the sanction under domestic law). First of all, this concerns political offenses. War crimes are also excluded from the scope of the Convention. The Convention also sets out other restrictions on extradition related to the specifics of the crime scene, the statute of limitations, and the possible death penalty for the extradited person.      

The Convention sufficiently regulates the requirements for an extradition request, the procedure for sending this request and submitting accompanying documents and possible additional information, the procedure for transit of the extradited person through the territory of the Contracting Parties, and also provides for a number of procedural guarantees for the rights of the extradited person during the preliminary investigation and judicial proceedings (including the decision on detention and arrest of the said person).       

The extradition of persons who have committed crimes and the prosecution of persons from the Commonwealth of Independent States is regulated by the Chisinau Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters, adopted on October 7, 2002. According to article 66, the participating countries undertook, upon request, to extradite persons located on their territory to each other for criminal prosecution. or to carry out the sentence.       

Extradition for criminal prosecution is carried out for such acts, which, according to the domestic legislation of the requesting and requested parties, are criminally punishable and for which the penalty is imprisonment for a period of at least one year or more severe.      

Extradition for the purpose of executing a sentence is carried out for such acts, which, in accordance with the domestic legislation of the requesting and requested parties, are criminally punishable and for their commission the person whose extradition is requested has been sentenced to imprisonment for a term of at least six months or a more severe punishment.       When deciding whether the act for which extradition is requested is criminally punishable, differences in the description of individual signs of the crime and in the terminology used do not matter.      

If extradition requests are received from several Contracting Parties, the requested Contracting Party independently decides which of these requests should be granted (Article 79 of the Convention). 89 of the Chisinau Convention specifies in which cases extradition is not carried out.      

1. The issue is not carried out if:      

a) the person whose extradition is being requested is a national of the requested Contracting Party; b) at the time of receipt of the extradition request, criminal prosecution under the legislation of the requested Contracting Party cannot be initiated or the sentence cannot be enforced due to the expiration of the statute of limitations or other legal grounds.;      

c) in respect of the person whose extradition is requested, a sentence has been passed in the territory of the requested Contracting Party for the same crime, which has entered into legal force, or a decision to refuse to institute criminal proceedings or to terminate proceedings in the case.;      

d) the act in connection with which extradition is requested, in accordance with the legislation of the requesting or requested Contracting Party, is prosecuted only by way of private prosecution (at the request of the victim);      

e) extradition may prejudice the sovereignty and security of the requested Contracting Party;      

(e) There are substantial grounds to believe that the issue of extradition is related to the persecution of a person on the basis of race, gender, religion, ethnicity or political beliefs;      

g) the act in connection with which extradition is requested is classified under the legislation of the requested Contracting Party as military crimes, which are not crimes under ordinary criminal law.;      

h) the person whose extradition is requested has previously been extradited by the requested Contracting Party to third parties and the consent of that State for extradition has not been obtained.;      

i) the person whose extradition is requested has been granted asylum in the territory of the requested Contracting Party; k) there are other grounds provided for in an international treaty to which the requesting and requested Contracting Parties are parties.      

2. Extradition may be refused if the act in connection with which extradition is requested has been committed in the territory of the requested Contracting Party.      

3. In case of refusal of extradition, the requesting Contracting Party must be informed of the grounds for refusal within 10 days from the date of the decision to do so.      

In case of refusal to extradite the requested person, the competent judicial institution of the requested Contracting Party shall decide, in accordance with the legislation of the Contracting Party, the issue of criminal prosecution against the person whose extradition has been refused.

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.S.                          

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

Ministry of Justice of the Republic of Kazakhstan  

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