On some issues of judicial practice on the application of legislation on terrorist and extremist crimes
Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated December 8, 2017 No. 11.
Based on the results of the generalization of judicial practice, in order for the correct and uniform application by the courts of the legislation of the Republic of Kazakhstan on responsibility for terrorist and extremist crimes, the plenary session of the Supreme Court of the Republic of Kazakhstan decides to provide the following clarifications.
Terrorist and extremist crimes cause significant harm to public safety and undermine the foundations of statehood, therefore, timely and proper consideration of these categories of cases is one of the most important conditions for ensuring state security, protecting the rights, freedoms and legitimate interests of citizens and organizations, implementing the Constitution of the Republic of Kazakhstan (hereinafter referred to as the Constitution), laws and other regulatory legal acts, and as well as international treaties of the Republic of Kazakhstan.
When considering cases of terrorist and extremist crimes, courts should be guided by the norms of the Constitution, the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code), Laws of the Republic of Kazakhstan dated July 13, 1999 No. 416 "On Countering Terrorism" (hereinafter referred to as the Law on Countering Terrorism), dated August 28, 2009 No. 191–IV "On Countering Terrorism". legalization (laundering) of Illegally Obtained Income and Financing of Terrorism" (hereinafter referred to as the Law on Countering the Legalization (Laundering) of Income), dated February 18, 2005 No. 31 "On Countering Extremism" (hereinafter referred to as the Law on Combating the Legalization (Laundering) of Income). – The Law on Countering Extremism), other regulatory legal acts of the Republic of Kazakhstan, as well as international treaties on combating terrorism and extremism, ratified by the Republic of Kazakhstan.
According to Article 255 of the Criminal Code and subparagraph 6) of Article 1 of the Law on Countering Terrorism, an act of terrorism is the commission or threat of an explosion, arson, or other actions that pose a risk of death, significant property damage, or other socially dangerous consequences if these actions are committed for the purpose of violating public safety, intimidating the population, or influencing decision-making by state bodies of the Republic of Kazakhstan, a foreign state or an international organization, provocations of war or complications of international relations, as well as an attack on human life committed for the same purposes, as well as an attack on the life of a state or public figure committed in order to terminate his state or other political activities or out of revenge for such activities, or an attack on human life involving attacks on individuals and organizations internationally protected buildings, structures, hostage-taking, buildings, structures, means of communication and communication, hijacking, as well as the seizure of an aircraft or a water vessel, railway rolling stock or other public transport.
The list of terrorist and extremist crimes is set out in paragraphs 30), 39) of Article 3 of the Criminal Code.
It should be borne in mind that the acts provided for in articles 184 (sabotage), 258 (financing of terrorist or extremist activities and other aiding and abetting terrorism or extremism), 259 (recruiting or training or arming persons for the purpose of organizing terrorist or extremist activities), 260 (undergoing terrorist or extremist training) of the Criminal Code are also classified as extremist and terrorist crimes.
The subject of terrorist and extremist crimes provided for in articles 173, 174, 177, 178, 184, 255, 256, 257 ( parts one and two), 258, 261, 269 of the Criminal Code, may be a person who has reached the age of fourteen at the time of the commission of the crime.
For the commission of other types of crimes of a terrorist and extremist nature, criminal responsibility begins at the age of sixteen.
According to the third part of Article 15 of the Criminal Code, a minor is not subject to criminal liability if, due to mental retardation unrelated to a mental disorder, he could not fully realize the actual nature and social danger of his actions (inaction) or direct them during the commission of a criminal offense.
The subjective side of an act of terrorism is characterized by direct intent and a specific purpose.
The special purposes of an act of terrorism (hereinafter referred to as special purposes) are: violation of public safety; intimidation of the population; influencing the decision–making by state bodies of the Republic of Kazakhstan, foreign states and international organizations, either with the aim of terminating the activities of state or public figures or out of revenge for such activities; provocation of war; complication of international relations.
When considering cases of acts of terrorism, it is always necessary to clarify whether the subject has a special purpose as an integral part of the subjective side of the crime. At the same time, to recognize an act as an act of terrorism, it is sufficient for the perpetrator to have one of the listed special purposes.
If none of the purposes of the acts is established, the perpetrators are liable under other relevant articles of the Criminal Code.
In accordance with subparagraph 1) of Article 4 of the Law of the Republic of Kazakhstan dated January 6, 2012 No. 527-IV "On National Security of the Republic of Kazakhstan", public security as an object of terrorism is understood to mean the state of protection of life, health and well-being of citizens, spiritual and moral values of Kazakh society and the social security system from real and potential threats, while which ensures the integrity of society and its stability.
Such actions, which by their nature are capable of causing people to fear for their lives and health, the safety of loved ones, the safety of property, and others, should be recognized as intimidating to the population.
Influencing the state bodies of the Republic of Kazakhstan, foreign states, international organizations, state or public figures may be expressed in encouraging the relevant subjects to make certain decisions or to refrain from making them.
The commission of an explosion, arson or other actions entails criminal liability under Article 255 of the Criminal Code in cases where it is established that these actions were intimidating to the public and created a real danger of loss of life, significant property damage or other socially dangerous consequences.
At the same time, the risk of death of a person, causing significant property damage or other socially dangerous consequences must be real, which is determined in each specific case, taking into account the place, time, tools, means, method of committing a crime and other circumstances of the case (data on the number of people who were in the area of the explosion site, power and destructive ability used explosive device and the like).
The commission of other actions that pose a risk of loss of life, significant property damage, or other socially dangerous consequences specified in Article 255 of the Criminal Code should be understood as intentional actions comparable in consequences to an explosion or arson (organization of accidents, wrecks, destruction of dams, damage to the water supply system, power lines, and other life support facilities of the population, the spread of pathogenic microbes capable of causing an epidemic or epizootic, radioactive, chemical, biological (bacteriological) and other contamination of an area, an armed attack on populated areas, shelling of residential buildings, schools, hospitals, administrative buildings, places of deployment (location) of military personnel or law enforcement, special or other government agencies; seizure and (or) destruction of buildings, train stations, ports, cultural or religious structures).
When deciding whether property damage is significant, courts should proceed from the value and significance of the destroyed or damaged property, material assets, as well as from the actual costs necessary to restore (repair) the damaged property. Causing significant property damage as a result of an act of terrorism is qualified under the first part of Article 255 of the Criminal Code (in the absence of other qualifying features of Article 255 of the Criminal Code) and does not require additional qualifications under Articles 202 and 203 of the Criminal Code.
With regard to the first part of Article 255 of the Criminal Code, other socially dangerous consequences may include, in particular, causing moderate harm to several persons, prolonged disruption of the work of an enterprise(s) and (or) institutions (institutions), disorganization of the activities of public authorities and local governments, significant deterioration of the environmental situation (for example, water pollution, atmosphere, land degradation and other negative environmental changes that require significant material costs and a long time to eliminate their consequences).
When deciding whether the disruption of the work of an enterprise or institution was prolonged, the courts should proceed from the specific circumstances of the case, taking into account the duration of the suspension of work, the specifics of their activities, the amount of damage caused and other circumstances.
The threat of committing an act of terrorism is understood to mean actions accompanied by a strong statement indicating the explicit intentions of the perpetrator to commit an explosion, arson or other actions that pose a risk of death, significant property damage or other socially dangerous consequences, for special purposes.
The criterion for assessing the reality of a threat is the existence of sufficient grounds to fear the implementation of this threat. The threat of an explosion, arson, or other actions that frighten the population and endanger the death of a person or several persons, causing significant property damage, or other socially dangerous consequences is considered a formal crime and is considered a completed crime at the time when the threat of these actions is communicated to the addressee, provided that they perceived the threat as real.
The threat may be addressed to state authorities, local governments, organizations, government or public figures, and may be open or anonymous.
A threat can be expressed in various ways, for example, by oral utterance, written appeal, telephone message, dissemination using technical means, information and telecommunication networks, mass media, computer technologies.
Courts should keep in mind that the threat of an act of terrorism differs from a deliberately false report of an act of terrorism (Article 273 of the Criminal Code) in that a false report of an act of terrorism is information received through the communication channels of law enforcement agencies and emergency response services about a deliberately non-existent threat of an act of terrorism, that is, with a false report there is no threat an act of terrorism. Whereas when an act of terrorism is threatened, the perpetrator pursues special goals.
If the perpetrator, in order to commit an act of terrorism, attempted to carry out an explosion, arson, or other actions that pose a risk of death, significant property damage, or other socially dangerous consequences, but was unable to commit these actions due to circumstances beyond his control, the deed should be qualified as an attempt to commit an act of terrorism.
Based on the second part of Article 24 of the Criminal Code, it should be noted that criminal liability is imposed for preparing for a serious or especially serious crime, as well as for preparing for a terrorist crime.
Repeated commission of an act of terrorism involves the commission of a terrorist crime at least twice, for which the person has not been convicted and has not been released from criminal liability.
When a completed act of terrorism is committed in one case and an attempt to commit an act of terrorism in another, or when the perpetrator was the perpetrator of one criminal offense and the organizer, instigator or accomplice in the commission of others, the actions of the perpetrator must be qualified taking into account the explanations of the normative resolution of the Supreme Court of the Republic of Kazakhstan dated December 25, 2006 No. 11 "On the qualification of repeated and cumulative criminal offenses."
When deciding on the presence (absence) of a qualifying feature of a crime, such as "commission with the use of weapons or objects used as weapons, explosives or explosive devices", it should be borne in mind that in accordance with subparagraph 5) of Article 1 of the Law of the Republic of Kazakhstan dated December 30, 1998 No. 339-I "On State control over the turnover of certain types of weapons" weapons are devices and objects that are structurally designed to hit a live or other target, as well as to send signals.
Objects used as weapons may be recognized as any objects used by a person to kill, harm health, or intimidate the population.
When recognizing items used as weapons, courts should take into account the content of paragraph 21 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated July 11, 2003 No. 8 "On judicial practice in cases of embezzlement".
Explosives are chemicals and their mixtures that are capable of explosive reactions. Explosives should be understood as gunpowder, TNT, nitroglycerin, pyroxylin, ammonal and other chemicals and their mixtures capable of explosive reactions. Explosive devices should be recognized as objects that are structurally designed to produce an explosion. At the same time, weapons, explosives or explosive devices can be either factory-made or homemade.
If illegally acquired, stored or manufactured firearms, ammunition, explosives or explosive devices were used in the course of committing an act of terrorism, then the actions of the person are subject to qualification according to the totality of criminal offenses provided for in Articles 255, 287, 288 of the Criminal Code.
Public danger of the crime provided for in paragraph 1) According to the third part of Article 255 of the Criminal Code, the commission of an act of terrorism with the use or threat of use of weapons of mass destruction, radioactive materials and the commission or threat of mass poisoning, the spread of epidemics or epizootics, as well as other actions capable of causing mass death of people, creates a threat of mass death of people, destruction of life support facilities of the population, infection or destruction of the animal or plant world, It can also lead to other harmful consequences for society and the environment.
In accordance with subparagraph 2) of Article 1 of the Law of the Republic of Kazakhstan dated July 21, 2007 No. 300 "On Export Control", weapons of mass destruction are chemical, bacteriological (biological), radiological, nuclear and toxin weapons.
When determining the types of weapons of mass destruction, article 2, paragraph 1, of the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction (Paris, January 13, 1993), ratified by the Law of the Republic of Kazakhstan dated June 24, 1999 No. 398, should be taken into account.
According to subparagraph 24) of Article 1 of the Law of the Republic of Kazakhstan dated January 12, 2016 No. 442-V "On the Use of Atomic Energy", as well as part 1 of Article 1 of the International Convention for the Suppression of Acts of Nuclear Terrorism ( New York, September 14, 2005), ratified by the Law of the Republic of Kazakhstan dated May 14, 2008 No. 33-IV, radioactive material is nuclear material and other radioactive substances (any materials of natural or man-made origin in any aggregate state) containing radionuclides that decompose spontaneously and which, due to their radiological properties, may or the properties of its division to cause death, serious injury, or significant damage to property or the environment.
If illegally acquired or stored radioactive substances were used in the commission of an act of terrorism, then the actions of the person are subject to qualification according to the totality of criminal offenses provided for in Articles 255 and 283 of the Criminal Code.
The concepts of "epidemic" and "epizootic" are defined in Article 1 of the Code of the Republic of Kazakhstan "On Public Health and the Healthcare system", as well as in article 1 of the Law of the Republic of Kazakhstan dated July 10, 2002 No. 339-II "On Veterinary Medicine", respectively.
Other actions specified in paragraph 1) of the third part of Article 255 of the Criminal Code should be understood as such actions that can lead to mass deaths of people.
If an act of terrorism has negligently caused the death of a person (or two or more persons), then such actions are covered by paragraph 2) the third part of Article 255 of the Criminal Code and additional qualifications under Articles 99, 104 of the Criminal Code are not subject.
Intentional infliction of death on a person (or two or more persons) is subject to qualification under part four of Article 255 of the Criminal Code.
The courts need to keep in mind that an attempt on human life by means of an explosion, arson or other generally dangerous means, which does not pursue the special purpose of an act of terrorism, should be qualified not as terrorism, but as the murder of a certain person committed in a manner dangerous to the lives of many people, that is, according to paragraph 6) of the second part of Article 99 of the Criminal Code.
In the event of an attack on the life of a law enforcement officer, a special state body, a military serviceman, as well as a person carrying out justice or pre-trial investigation, committed by these methods, but in the absence of a special purpose characteristic of terrorism, the actions of the perpetrator are subject to qualification under articles 380-1, 408 of the Criminal Code.
In accordance with paragraph 3 of article 20 of the Constitution, propaganda or agitation of a violent change in the constitutional order, violation of the integrity of the Republic, undermining the security of the State, war, social, racial, national, religious, class and clan superiority, as well as the cult of cruelty and violence are prohibited.
According to subparagraph 5) of article 1 of the Law on Combating Terrorism, terrorism is an ideology of violence and the practice of influencing decision–making by state bodies, local governments or international organizations by committing or threatening to commit violent and (or) other criminal acts related to intimidation of the population and aimed at harming individuals, society and the State.
The propaganda of terrorism should be understood as the dissemination in any way of materials or information containing the ideology of violence and the practice of terrorism by influencing the consciousness and will of a person(s) in order to incite in him (them) the desire to carry out terrorist activities or justifying or justifying the need to carry out such activities.
Propaganda of terrorism forms part of a completed criminal offense from the moment of committing acts to spread the ideology of violence and the practice of terrorism. The method of distribution does not matter for bringing a person to criminal responsibility for terrorist propaganda. Propaganda can be carried out through oral presentations or the dissemination of written or printed materials, including through the use of mass media or telecommunications networks.
Criminal liability is imposed for extremist crimes specified in paragraph 39) of Article 3 of the Criminal Code.
Courts should keep in mind that, in accordance with subparagraph 1) of Article 1 of the Law on Countering Extremism, extremism is the organization and (or) commission by an individual and (or) a legal entity, an association of individuals and (or) legal entities of actions on behalf of organizations recognized as extremist in accordance with the established procedure; individuals and (or) a legal entity, an association of individuals and (or) legal entities of actions aimed at:
violent change of the constitutional order, violation of the sovereignty of the Republic of Kazakhstan, the integrity, inviolability and inalienable rights of its territory, undermining national security and the defense capability of the state, forcible seizure of power or forcible retention of power, creation, leadership and participation in an illegal paramilitary formation, organization of an armed rebellion and participation in it, incitement of social and class discord (political extremism);
incitement of racial, national and tribal discord, including those related to violence or calls for violence (national extremism);
incitement of religious hatred or discord, including those related to violence or calls for violence, as well as the use of any religious practice that threatens the safety, life, health, morals, or rights and freedoms of citizens (religious extremism).
Public calls to commit an act of terrorism in the first part of Article 256 of the Criminal Code should be understood as appeals expressed in any form (oral or written).
Appeals should be public. Public calls to commit an act of terrorism should be considered a completed criminal offense from the moment of the public proclamation (dissemination) of at least one appeal, regardless of whether it was possible to encourage other citizens to carry out this act.
The issue of the publicity of calls to commit an act of terrorism should be resolved by the courts, taking into account the place, method, situation and other circumstances of the case, for example, addressing a group of people in public places, at meetings, rallies, demonstrations, distribution of leaflets, posters, distribution of appeals by mass mailing of electronic messages.
If public calls for an act of terrorism are committed using mass media or telecommunications networks (periodicals, television and radio channels, Internet resources and other means), then the act should be qualified under the second part of Article 256 of the Criminal Code.
When making public calls to commit an act of terrorism by mass mailing messages to mobile subscribers using electronic or information and telecommunication networks, the crime should be considered completed from the moment the appeals are posted on the specified public networks (for example, on websites, forums or blogs), sending messages to other persons.
When deciding on the use of mass media and information and communication infrastructure facilities to carry out terrorist propaganda or public calls to commit an act of terrorism, it is necessary to take into account the norms of the Laws of the Republic of Kazakhstan dated July 23, 1999 No. 451-I "On Mass Media" and November 24, 2015 No. 418-V "On Informatization".
According to subparagraph 14-1) of article 1 of the Law on Combating Terrorism, terrorist materials are any information materials containing information about the ways and means of committing an act of terrorism, as well as signs and (or) calls for terrorist activities, or justifying or justifying the need to carry out such activities.
In accordance with subparagraph 7) of article 1 of the Law on Countering Extremism, any information materials calling for extremist actions or justifying or justifying the need to commit them are extremist materials.
The dissemination of materials containing terrorist propaganda should be understood as the commission of actions aimed at transferring such materials by any means to another person(s) in order to encourage the implementation of terrorist activities.
Courts should keep in mind that terrorist materials do not include information containing general information explaining the essence of the phenomenon, and in which there are no signs of propaganda of terrorism and (or) calls to commit an act of terrorism.
To clarify that special knowledge can be used in the pre-trial investigation and consideration by the courts of cases related to terrorism and extremism. If necessary, appropriate examinations may be appointed and conducted to classify materials as terrorist and (or) extremist, as well as to determine the level of mental development of the subjects of a criminal offense and their ability to understand the essence of the disseminated materials as terrorist and (or) extremist, especially minors with limited sanity. At the same time, it is necessary to be guided by the criminal procedure legislation, as well as the explanations of the normative resolution of the Supreme Court of the Republic of Kazakhstan dated November 26, 2004 No. 16 "On forensic examination in criminal cases".
In accordance with paragraph 31) of Article 3 of the Criminal Code (paragraph 40) of Article 3 of the Criminal Code), subparagraph 15) of Article 1 of the Law on Countering Terrorism (subparagraph 8) of Article 1 of the Law on Countering Extremism), a terrorist (extremist) group (hereinafter referred to as a group) is an organized group with the aim of committing one or more terrorist acts. (extremist) crimes.
The creation of a terrorist (part one of Article 257 of the Criminal Code), extremist (part one of Article 182 of the Criminal Code) group is considered a completed crime from the moment the group is actually formed, that is, from the moment several persons join a group.
The management of the group consists in exercising managerial functions in relation to the group, as well as its individual members, in order to ensure the group's activities.
The leadership of a group can be expressed, in particular, in approving plans for terrorist and (or) extremist activities, distributing criminal duties in a group, guiding group members in committing certain acts of terrorism and (or) extremism, as well as in performing other actions aimed at achieving certain goals (for example, in organizing logistical support, in taking security measures against group members).
Criminal liability under the second part of Article 257 of the Criminal Code (under the second part of Article 182 of the Criminal Code) for participation in a terrorist (extremist) group occurs in cases when the members of this group realize its illegality and their affiliation to it and act to achieve terrorist (extremist) goals.
Participation in the group's activities should be understood as joining a group (for example, taking the oath of office, membership in an organization engaged in terrorist and (or) extremist activities, performing tasks and assignments of the group leader). A criminal offense in the form of a person's participation in a group is considered completed from the moment of joining the group with the intention of participating in terrorist and (or) extremist activities or in the preparation or commission of one or more criminal offenses of a terrorist and (or) extremist orientation.
When members of a terrorist group or an illegal armed formation commit a specific terrorist crime, their actions must be qualified according to the totality of criminal offenses provided for in part two of Article 257, part two of Article 267 of the Criminal Code and the relevant articles of the Criminal Code (for example, articles 255, 256, 259 of the Criminal Code).
To clarify that, in order to ensure the completeness of the investigation, the body conducting the criminal process may use unified lists of organizations and information materials recognized by the court in accordance with article 12-1 of the Law on Countering Terrorism as terrorist, posted on the Internet resource of the state body carrying out statistical activities in the field of legal statistics and special accounting.
In accordance with Article 258 of the Criminal Code, as well as subparagraph 12) of Article 1 of the Law on Countering the Legalization (Laundering) of Income and subparagraph 3) of Article 1 of the Law on Countering Extremism, the Financing of Terrorism and Extremism is the provision or collection of money and (or) other property, the right to property or benefits of a proprietary nature, as well as the donation, exchange, donations, sponsorship and charitable assistance, provision of information and other services, or provision of financial services to an individual or a group of persons, or a legal entity, committed by a person, those who knowingly realized the terrorist and extremist nature of their activities, or that the provided property, information, financial and other services would be used to carry out terrorist or extremist activities or to provide support to a terrorist or extremist group, terrorist or extremist organization, illegal paramilitary formation.
Financing of terrorism and extremism should also be recognized as the provision or collection of material resources, for example, items of uniforms, equipment, communications equipment, medicines, residential or non-residential premises, vehicles.
The crime is considered completed from the moment of collection, transfer (direction) of money, other property or provision of services. At the same time, the actual use of these assets for the purposes set out in the disposition of Article 258 of the Criminal Code is not required.
Recruitment (part one of Article 259 of the Criminal Code) should be considered deliberate actions aimed at organizing terrorist or extremist activities to form a desire (intention, aspiration) and willingness of a certain person (group of persons) to participate in the commission of a terrorist or extremist crime. In particular, the search for and involvement of individuals in terrorist or extremist activities, campaigning, inclusion in the list for training, and more. At the same time, the actions of the recruiter must be active and may be accompanied by the use of mental or physical influence.
Recruitment can be carried out in various ways, for example, persuasion, requests, offers, threats, intimidation, beatings, bribery, deception, arousing feelings of revenge, envy and other base motives, assurances of impunity, the promise of payment for acts of terrorism. Recruitment should be considered a completed criminal offense from the moment these actions are committed, regardless of whether the person has committed a terrorist and/or extremist crime.
Training consists of teaching recruited persons the rules of handling weapons, ammunition, explosive devices, explosives, radioactive substances, nuclear materials, military equipment, communications, rules of engagement, as well as conducting appropriate briefings, training, shooting, exercises and other actions for the purpose of organizing terrorist or extremist activities in any area. the form.
In the first part of Article 259 of the Criminal Code, armament is understood to mean providing individuals with weapons of any kind to participate in terrorist or extremist activities.
To clarify that an attack on buildings, structures, means of communication and other communications, according to Article 269 of the Criminal Code, should be recognized as the commission of violent acts by a person aimed at seizing these objects.
Seizure, in accordance with the first part of Article 269 of the Criminal Code, should be understood as unlawful seizure of a building, structure, means of communication and other communications. The seizure can be carried out both secretly and openly, with or without violence.
It should be borne in mind that the concepts of "buildings" and "structures" are defined in Article 1 of the Law of the Republic of Kazakhstan dated July 16, 2001 No. 242-II "On Architectural, Urban planning and construction activities in the Republic of Kazakhstan". In addition, in accordance with subparagraph 57) of Article 2 of the Law of the Republic of Kazakhstan dated July 5, 2004 No. 567-II "On Communications", telecommunications (communications) means technical devices, equipment, systems and software tools that allow to generate, transmit, receive, store, process, switch electromagnetic or optical signals. signals or control them.
In relation to persons found guilty of committing criminal offenses provided for in articles 170, 171, 173, 182, 184, 255, 256, 257, 258, 259, 270 In accordance with paragraphs 1), 2), 3) of the second part of Article 48 of the Criminal Code, the court must decide on the confiscation of money., valuables and other property obtained as a result of the commission of these crimes, and any proceeds from this property; money, valuables and other property into which this property and proceeds from it have been partially or completely converted or transformed; money, valuables, and other property used or intended to finance terrorism, extremism, an organized group, an illegal armed group, or a criminal community (criminal organization).
Based on the provisions of paragraph 4) of the second part of Article 48 of the Criminal Code, the court must decide to confiscate the tools or other means of committing a criminal offense belonging to the defendant.
In order to curb the financing of terrorism and extremism, if necessary, measures should be taken provided for in Chapter 71 of the Criminal Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC).
The sanctions of the articles of the Criminal Code, which establish penalties for the commission of certain types of terrorist and extremist crimes, provide for additional punishment – deprivation of citizenship of the Republic of Kazakhstan. Courts should keep in mind that, in accordance with the first part of Article 50-1 of the Criminal Code, deprivation of citizenship of the Republic of Kazakhstan is understood as the forced termination by the State of a stable political and legal relationship with a convicted person, expressing the totality of their mutual rights and obligations.
When discussing the appointment or non-appointment of this type of additional punishment, the courts must take into account all the circumstances of the case, the consequences of terrorist and (or) extremist crimes, and information about the identity of the perpetrator. The court's decision in this part must be motivated. It should be noted that the deprivation of citizenship of the Republic of Kazakhstan is not assigned to persons who have committed a crime under the age of eighteen.
The notes to Articles 182, 255, 258, 260, and 261 of the Criminal Code provide for the conditions for the release from criminal liability of persons who voluntarily stopped participating in terrorism and (or) extremist activities, unless their actions contain other elements of a criminal offense.
Voluntary termination of participation is understood as the termination of criminal activity by a person upon realizing the possibility of its continuation, which may be expressed, for example, in withdrawal from an extremist group, failure to comply with the orders of their leaders, refusal to commit criminal offenses, as well as in other actions that contribute to the activities of a terrorist and (or) extremist group.
Courts should pay attention to the importance of preventive and preventive work to eliminate manifestations of terrorism and extremism, and for this purpose take effective measures provided for by law aimed at ensuring the inevitability of punishment. In necessary cases, the courts, in accordance with article 405 of the CPC, must issue private rulings to take measures aimed at eliminating the causes and conditions that contributed to the commission of terrorist and (or) extremist crimes.
According to article 4 of the Constitution, this normative resolution is included in the current law, is generally binding and comes into force from the date of its first official publication.
Chairman of the Supreme Court of the Republic of Kazakhstan
K. Mamie
Judge of the Supreme Court of the Republic of Kazakhstan, Secretary of the plenary session
G.Almagambetova
The Criminal Code, Comments to the Criminal Code, the Normative resolution of the Supreme Court, Criminal legislation, Normative legal acts of the Republic of Kazakhstan
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