On judicial practice in cases of extortion
Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated June 23, 2006 No. 6.
In connection with changes in the legislation of the Republic of Kazakhstan, the plenary session of the Supreme Court of the Republic of Kazakhstan
Decides:
Extortion is one of the mercenary crimes against property.
The subject of extortion is: other people's property (things, money, including foreign currency, securities, objectified results of creative intellectual activity, brand names, trademarks and other means of individualization of products); the right to property (a will, an insurance policy, a receipt, a contract, a power of attorney to receive certain valuables, various types of securities and another document giving him the right to receive property) or other property-related actions (services of unequal content, for example, allegedly for "protecting premises", for "assistance" in the sale of products, destruction of debt receipts, renunciation of debt in common property, reduction of interest rates, production of any work, etc.).
Extortion is considered to be completed at the time of presentation of property claims to the victim, combined with appropriate threats, regardless of whether the perpetrator has achieved the desired goal, received the required property, the right to property, or achieved the victim's actions of a property nature.
When classifying the actions of the perpetrator as extortion, it is necessary to establish a specific type of threat provided for in the disposition of the law, bearing in mind that the victims of the threat of extortion can be both the owner or the person in charge or under whose protection the property is located, and their loved ones. The form of expression of the threat does not matter for the qualification of extortion (oral or written, expressed personally or through an intermediary, formulated openly or in a veiled form), however, its content must be perceived by the victim unambiguously in accordance with its actual meaning.
To qualify the actions of the extortionist, it is immaterial by whom this threat can be realized: by himself or his accomplices.
Extortion under threat of violence should be understood as actions expressing the intention to exert coercive psychological influence (threat to take life, cause serious, moderate or minor harm to health, commit rape or other violent acts).
In the case of extortion committed with the threat of destruction or damage to property, it does not matter what kind of property is in question (entrusted to the victim for protection or his own, movable or immovable) and in what way this threat will be realized. In these cases, it should be borne in mind that the threat must be real and capable of having a frightening effect on the victim.
If, during the commission of extortion, the victim's property was destroyed or damaged under the circumstances specified in the disposition of Article 202 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code), then the actions of the perpetrator form a set of these crimes.
The footnote. Paragraph 4 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated December 24, 2014 No. 4 (effective from the date of its official publication).
The threat of spreading information that shames the victim or his relatives, or other information, the disclosure of which may cause significant harm to the interests of the victim or his relatives, should be understood as a requirement to transfer someone else's property or the right to property or other actions of a proprietary nature, accompanied by the threat of disclosure of any information that may harm the honor and dignity of the victim. At the same time, it does not matter whether the information that is being extorted is true. At the same time, it should be borne in mind that the victim seeks to keep this information secret, and the threat of its disclosure is used by the perpetrator to force him to comply with the requirements.
Significant harm can be caused by spreading information that shames the victim.
When determining significant harm, both the victim's subjective assessment of the severity of the moral damage caused to him and objective data indicating the degree of moral and physical suffering of the victim as a result of extortion committed under threat of spreading defamatory information are taken into account.
When determining the infliction of moral suffering, paragraph 3 of the Normative Resolution of the Supreme Court of the Republic of Kazakhstan dated November 27, 2015 No. 7 "On the application by courts of legislation on compensation for moral harm" should be followed.
Significant harm can also be caused by the disclosure of other information that, while not shameful, can cause significant harm to the victim, for example, disclosure of trade secrets that cause business losses, disclosure of adoption secrets or information related to family and private life, etc.
The footnote. Paragraph 5, as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 12/24/2014 No. 4 (effective from the date of official publication); dated 12/11/2020 No. 6 (effective from the date of the first official publication).
Extortion with the use of violence should be understood as the commission of this crime involving restriction of freedom, infliction of physical pain, blows, beatings, and infliction of mild or moderate harm to the victim's health.
When qualifying the actions of persons guilty of extortion on the basis of "a group of persons by prior agreement", one should be guided by the second part of Article 31 of the Criminal Code and paragraphs 8, 9, 10 of the regulatory decree of the Supreme Court of the Republic of Kazakhstan dated July 11, 2003 N "On judicial practice in cases of embezzlement" (hereinafter – NP SC RK "On judicial practice in cases of embezzlement").
The footnote. Paragraph 7 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 11.12.2020 No. 6 (effective from the date of the first official publication).
When applying the qualifying sign of repetition, one should be guided by Article 12 of the Criminal Code and paragraph 12 of the NP of the Supreme Court of the Republic of Kazakhstan "On judicial practice in cases of embezzlement."
The footnote. Paragraph 8 as amended by the normative resolution of the Supreme Court of the Republic of Kazakhstan dated 04/21/2011 No. 1 (effective from the date of official publication); as amended by the normative resolutions of the Supreme Court of the Republic of Kazakhstan dated 12/24/2014 No. 4 (effective from the date of official publication); dated 12/11/2020 No. 6 (effective from the date of the first official publication).
When qualifying the actions of persons guilty of extortion on the basis of a criminal group, paragraph 24) of Article 3 of the Criminal Code and paragraph 11 of the NP of the Supreme Court of the Republic of Kazakhstan "On judicial practice in cases of embezzlement" should be guided.
The footnote. Paragraph 9, as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 12/24/2014 No. 4 (effective from the date of official publication); dated 12/11/2020 No. 6 (effective from the date of the first official publication).
When determining serious harm to health, one should be guided by paragraph 11) of Article 3 of the Criminal Code and the Rules for the Organization and Conduct of Forensic examinations and Research in forensic examination bodies, approved by Order No. 484 of the Minister of Justice of the Republic of Kazakhstan dated April 27, 2017.
In the case of serious injury to the victim's health during extortion, no additional qualification is required under Article 106 of the Criminal Code, since the act is fully covered by paragraph 1) Part three of Article 194 of the Criminal Code.
The actions of the guilty person who committed extortion, involving intentional infliction of serious harm to health, resulting in his death by negligence, must be qualified according to the totality of the crimes provided for in paragraph 1) part three of Article 194 and part three of Article 106 of the Criminal Code.
The actions of the extortionist who carried out his threat by intentionally causing death to the victim form a combination of extortion and murder, since the composition of extortion is recognized as fulfilled at the time of presentation of the relevant demand combined with the threat, and the actions of the extortionist who carried out the threat that led to death go beyond the composition of extortion and require additional qualifications.
The footnote. Paragraph 10, as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 12/24/2014 No. 4 (effective from the date of official publication); dated 12/11/2020 No. 6 (effective from the date of the first official publication).
When determining a large and especially large size, paragraphs 3), 38) of Article 3 of the Criminal Code should be followed.
Courts should keep in mind that to qualify an act under paragraph 2) of part three or paragraph 2) of part four of Article 194 of the Criminal Code, it does not matter whether the goal of obtaining property on a large or especially large scale has been achieved or not.
The footnote. Paragraph 11 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 12/24/2014 dated 12/24/2014 No. 4 (effective from the date of official publication); as amended by the regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated 12/11/2020 No. 6 (effective from the date of the first official publication).
12. Excluded by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/21/2011 No. 1 (effective from the date of its official publication).
When distinguishing extortion from arbitrariness, it should be borne in mind that in extortion, property relations act as the main object of extortion, and the health, honor and dignity of the victim as an additional one, while in arbitrariness, relations in the field of governance act as the main object, and in the case of harm to the individual and property, the latter act as additional objects.
The footnote. Paragraph 9, as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 12/24/2014 No. 4 (effective from the date of official publication); dated 12/11/2020 No. 6 (effective from the date of the first official publication).
When determining serious harm to health, one should be guided by paragraph 11) of Article 3 of the Criminal Code and the Rules for the Organization and Conduct of Forensic examinations and Research in forensic examination bodies, approved by Order No. 484 of the Minister of Justice of the Republic of Kazakhstan dated April 27, 2017.
In the case of serious injury to the victim's health during extortion, no additional qualification is required under Article 106 of the Criminal Code, since the act is fully covered by paragraph 1) the third part of Article 194 of the Criminal Code.
The actions of the guilty person who committed extortion, involving intentional infliction of serious harm to health, resulting in his death by negligence, must be qualified according to the totality of the crimes provided for in paragraph 1) part three of Article 194 and part three of Article 106 of the Criminal Code.
The actions of the extortionist who carried out his threat by intentionally causing death to the victim form a combination of extortion and murder, since the composition of extortion is recognized as fulfilled at the time of presentation of the relevant demand combined with the threat, and the actions of the extortionist who carried out the threat that led to death go beyond the composition of extortion and require additional qualifications.
The footnote. Paragraph 10, as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 12/24/2014 No. 4 (effective from the date of official publication); dated 12/11/2020 No. 6 (effective from the date of the first official publication).
When determining a large and especially large size, paragraphs 3), 38) of Article 3 of the Criminal Code should be followed.
Courts should keep in mind that to qualify an act under paragraph 2) of part three or paragraph 2) of part four of Article 194 of the Criminal Code, it does not matter whether the goal of obtaining property on a large or especially large scale has been achieved or not.
The footnote. Paragraph 11 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 12/24/2014 dated 12/24/2014 No. 4 (effective from the date of official publication); as amended by the regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated 12/11/2020 No. 6 (effective from the date of the first official publication). 12. Excluded by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/21/2011 No. 1 (effective from the date of its official publication).
When distinguishing extortion from arbitrariness, it should be borne in mind that in extortion, property relations act as the main object of extortion, and the health, honor and dignity of the victim as an additional one, while in arbitrariness, relations in the field of governance act as the main object, and in the case of harm to the individual and property, the latter act as additional objects.
There are significant differences in these compositions on the subjective side. Extortion is characterized by direct intent and a selfish motive, i.e. the extortionist wants to receive property, the right to property, from the victim free of charge, to achieve other property-related actions in favor of the perpetrator or other persons, while the extortionist is aware that he has neither a valid nor an alleged right to receive what is required and seeks to illegally enrich himself at the expense of another person. The subjective side of arbitrariness is also characterized by the presence of direct intent on the part of the perpetrator in relation to his actions, however, the mercenary motive is absent, as he realizes that he has a real or alleged right to property, to commit property-related actions in his favor by the victims, and wants these items to be transferred to him or others. persons, and the actions were committed in his favor or in favor of others.
On the objective side, the difference between extortion and arbitrariness lies in the fact that extortion, by design of the objective side, is a formal crime, and arbitrariness is material, that is, it requires the onset of socially dangerous consequences in the form of significant harm to the rights or legitimate interests of citizens or organizations, or the legally protected interests of society or the state.
The footnote. Paragraph 13 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated December 24, 2014 No. 4 (effective from the date of its official publication).
Resolving the issue of delineating the robbery provided for in paragraph 1) In the second part of Article 191 of the Criminal Code, and robbery from extortion combined with violence, it should be borne in mind that if in robbery or robbery violence is a means of seizing property and retaining it, then in extortion physical violence is a way of reinforcing the threat, but is not implemented immediately, but after a certain time, in a more or less distant future. Extortion will also occur if the perpetrator received the property at the same time as making the claim.
The footnote. Paragraph 14, as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 12/24/2014 No. 4 (effective from the date of official publication); dated 12/11/2020 No. 6 (effective from the date of the first official publication).
The qualifying signs of a crime specified in article 194 of the Criminal Code should be taken into account both when committing extortion against the victim and his relatives. The victim's relatives may be recognized not only by his close relatives, but also by those who, in connection with the established relationship, are such (spouses who are not legally married, the bride and groom, guardians and guardians, and their wards, etc.).
The footnote. Paragraph 15 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated December 24, 2014 No. 4 (effective from the date of its official publication).
The Criminal Code provides for special forms of extortion: extortion of radioactive materials (Article 284 of the Criminal Code), weapons, ammunition, explosives and explosive devices (Article 291 of the Criminal Code), narcotic or psychotropic substances (Article 298 of the Criminal Code). When committing these types of extortion, no additional qualifications are required under Article 194 of the Criminal Code.
The footnote. Paragraph 16 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated December 24, 2014 No. 4 (effective from the date of its official publication).
In connection with the adoption of this regulatory resolution, to invalidate the resolution of the Plenum of the Supreme Court of the Republic of Kazakhstan No. 11 dated December 22, 1995 "On judicial practice in cases of extortion" (with subsequent amendments and additions).
According to article 4 of the Constitution of the Republic of Kazakhstan, this regulatory resolution is included in the current law, and is also generally binding and effective from the date of its official publication.
Chairman of the Supreme Court
Republic of Kazakhstan
Judge of the Supreme Court
Republic of Kazakhstan,
Secretary of the plenary session
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