On some issues of the application by the courts of legislation on liability for involvement in a crime and complicity in a criminal offense
Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated December 22, 2016 No. 14.
In order to ensure the unity of judicial practice and the correct application of legislation on liability for involvement in a crime and complicity in a criminal offense, the plenary session of the Supreme Court of the Republic of Kazakhstan
Decides:
To clarify that involvement in a crime is recognized as a special form of involvement in a crime, which is not complicity in a committed crime and is not causally related to it, but is expressed in a deliberate socially dangerous act that prevents the detection of a crime and the exposure of the person who committed it.
The main types of involvement in a crime, for which the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code) provides for liability, are the previously unannounced concealment of a corrupt, grave or especially grave crime or a crime against the sexual integrity of a minor (Article 432 of the Criminal Code) and failure to report a reliably known impending or committed grave crime against the sexual integrity of a minor, especially a serious crime or a reliably known impending act of terrorism (Article 434 of the Criminal Code). At the same time, in accordance with the Constitution of the Republic of Kazakhstan and the criminal law, the spouse or close relative of the person who committed the crime, as well as clergymen, are not criminally liable for failure to report crimes committed by persons who confided in them in confession. A person is not subject to criminal liability under Article 432 of the Criminal Code for previously not promising concealment of a crime committed by his spouse or a close relative.
In criminal proceedings, in accordance with paragraph 11 of Article 7 of the Criminal Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC), parents, children, adoptive parents, adopted children, full- and half–siblings, grandparents, and grandchildren are recognized as close relatives. This list of close relatives is exhaustive and is not subject to extensive interpretation.
The footnote. Paragraph 1 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).
Failure to report a crime consists in deliberate inaction or failure to comply with the legal obligation of each person provided for by law to inform the relevant State authorities about a well-known serious crime against the sexual integrity of a minor, a particularly serious crime, or a well-known act of terrorism that is being prepared.
Failure to report other reliably known upcoming or committed offenses not specified in Article 434 of the Criminal Code does not entail criminal liability. At the same time, when such facts are revealed, in order to ensure the legal policy of the state and the principle of zero tolerance for offenses, the courts have the right to bring the fact of a person's failure to fulfill his civil and moral duty to the attention of relevant organizations by issuing a private ruling. For the same purpose, in all cases where a person provides assistance to justice by timely reporting reliably known criminal offenses that are being prepared or committed, the courts should privately raise the issue of the need to encourage this person before the relevant organizations.
The footnote. Paragraph 2 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).
If there is evidence of a threat of violence or other legally prohibited act against a person who has reported an impending or committed crime, or members of his family and close relatives, the pre-trial investigation authorities are required, in accordance with article 97 of the CPC, to apply security measures against this person, including restricting access to information about this person, storing them separately from the main production, using a pseudonym.
A person may not be held criminally liable for failure to report a crime committed by another person if they are both accomplices in another criminal offense committed by them during the same time period, if the person may expose himself by reporting the crime.
A lawyer providing legal assistance, in accordance with the requirements of part five of Article 70 of the CPC, is not entitled to commit any actions against the interests of his client and interfere with the exercise of his rights, as well as contrary to the position of the client to admit his involvement in a criminal offense and guilt in its commission. According to subparagraph 9) of paragraph 3 of Article 33 of the Law of the Republic of Kazakhstan dated July 5, 2018 No. 176-VI "On Advocacy and Legal assistance", a lawyer is obliged to keep confidential information that has become known to him in connection with the provision of legal assistance and not disclose it without the consent of the person requesting help. In this regard, a lawyer cannot be held criminally liable for failure to report another crime committed by his client, which became known to the lawyer while providing legal assistance.
A lawyer, as a subject of financial monitoring, must take measures in accordance with the Law of the Republic of Kazakhstan dated August 28, 2009 No. 191-IV "On Countering the Legalization (Laundering) of Proceeds from crime and the Financing of terrorism" (hereinafter referred to as the Law). It should be assumed that, in accordance with the requirements of subparagraph 1) of paragraph 3 of Article 10 of the Law, a lawyer has the right not to provide information and information about an operation subject to financial monitoring only in cases where this information and information is obtained in connection with the provision of legal assistance on issues of representation and protection of individuals and legal entities. in the bodies of inquiry, preliminary investigation, courts, as well as when providing them with legal assistance in the form of consultations, explanations, advice and written opinions on the issues, the resolution of which requires professional legal knowledge, drafting of statements of claim, complaints and other legal documents. In all other cases provided for by Law, a lawyer is required to provide the authorized financial monitoring body with information and information about suspicious transactions of his client, which may be aimed at legalizing (laundering) proceeds from crime, or financing terrorism or other criminal activities.
When hiding the person who committed the crime, the means and instruments of the crime, traces of the crime and other evidence, the lawyer is responsible for the previously unannounced or promised concealment on general grounds.
In cases where a lawyer, having learned about a new criminal offense being prepared by his client, gives him advice or provides other legal assistance in his plans, then he (the lawyer) is liable as an accomplice (accomplice) of the act committed by his client.
The footnote. Paragraph 5 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).
Concealment of a crime is expressed in the concealment (concealment) of the person who committed the crime, the means and instruments of the crime, traces of the crime and other evidence.
The concealment of a person who has committed a crime can be accomplished by providing him with shelter, transportation, forged documents, changing his appearance and other actions through which he can hide.
The concealment of the means and instruments of crime can be expressed in their destruction, changing their appearance, hiding them in a place inaccessible to detection.
Actions to conceal traces of a crime and other evidence may include the destruction (washing, cleaning) of clothes and objects that contain traces of a crime (for example, blood, fingerprints and other traces), the destruction of letters and other documents, the destruction of emails, digital documents, correspondence, files, as well as storage of electronic and digital information, removal of dents or replacement of the headlight glass on vehicles after a hit-and-run, etc.
A person's responsibility for the previously unsolicited concealment of a grave or especially grave crime committed by another person (the perpetrator) may take place only if the guilt of the perpetrator in committing a grave or especially grave crime is proven with the adoption by the court of a procedural decision on this criminal case in one proceeding or is established by a decision of the body conducting the criminal process, termination of a criminal case on non-rehabilitating grounds, or by a court verdict that has entered into legal force.
The unwarranted concealment of a corrupt, grave or especially grave crime or a crime against the sexual integrity of a minor by committing acts that are not covered by the elements of concealment, entails liability under the totality of Article 432 of the Criminal Code and the corresponding article of the Criminal Code, which provides for liability for a specific criminal offense. Such a set of criminal offenses may occur with concealment committed by intentionally destroying or damaging someone else's property (Article 202 of the Criminal Code); abuse of official authority (Article 361 of the Criminal Code); abuse of power or official authority (Article 362 of the Criminal Code), forgery of office (Article 369 of the Criminal Code), etc.
In cases where all the signs of the committed acts are covered by one norm of the Criminal Code, which provides for a more severe punishment, there is no totality, and the act is subject to qualification only according to this norm of the criminal law (for example, harboring illicit trafficking in narcotic drugs on an especially large scale by storing them).
The footnote. Paragraph 8 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).
The deliberate concealment by an authorized official of a criminal offense by not registering a message or statement from a person about a criminal offense or crime that is being prepared or committed, or the destruction or concealment by any means of the said person's treatment, entails liability under the relevant part of Article 433 of the Criminal Code, that is, under a special provision of the criminal law.
It is necessary to distinguish from the previously promised concealment of a crime the promised concealment of a criminal offense, which, in accordance with the criminal law, is recognized as complicity in a criminal offense in the form of complicity and is qualified under the relevant article of the Criminal Code, which provides for responsibility for a specific criminal offense, with reference to the fifth part of Article 28 of the Criminal Code.
If a spouse or a close relative commits complicity by promising in advance to conceal a criminal offense, the provisions of the Note to Article 432 of the Criminal Code do not apply to him. In this regard, this person is criminally liable on general grounds as an accomplice (accomplice) of a criminal offense.
The qualification of complicity in a criminal offense in general should be carried out in accordance with part five of Article 28 of the Criminal Code, according to which an accomplice may be recognized as a person who assisted in the commission of a criminal offense by advice, instructions, providing information, tools or means of committing this act or removing obstacles to its commission, as well as a person who promised in advance to conceal the perpetrator, the tools or other means of committing a criminal offense, traces of this act, or objects obtained unlawfully, as well as a person, who promised in advance to purchase or sell such items.
Advice and guidance in relation to complicity should be understood as oral or written recommendations and explanations on how to prepare a criminal offense more effectively or safely, which way it would be more appropriate to commit it, at what time it would be better to start implementing the plan, who to involve in complicity, etc.
Removing obstacles to the commission of a criminal offense should be understood as any actions of an accomplice to create the necessary conditions for the successful commission of a criminal offense (for example, disconnecting the power grid, damaging the alarm system, distracting guards, poisoning a guard dog, making a false call, destroying accounting documents, etc.).
Concealment of a criminal offense may be recognized as complicity in the form of complicity if the actions committed by the perpetrator were promised to the perpetrator before or during the commission of the criminal offense, or for other reasons gave the perpetrator grounds to knowingly and fully expect such assistance (for example, due to the following circumstances: repeated concealment or acquisition or sale of property, knowingly obtained by criminal means; having previously committed another criminal offense in complicity with the perpetrator; knowingly approving or agreeing with the ideas and goals of a criminal group, including a criminal organization, terrorist group, extremist group, gang and illegal paramilitary formation, etc.).
A person who has committed a promised concealment in advance is an accomplice of a complex complicity, and therefore his actions are subject to qualification under the relevant article of the Special Part of the Criminal Code on the basis of committing a criminal offense by a group of persons by prior agreement or by a criminal group, with reference to the fifth part of Article 28 of the Criminal Code.
An unwritten concealment or non-disclosure by a person who is an accomplice or other accomplice to a crime does not require additional qualification under Article 432 or Article 434 of the Criminal Code, since non-disclosure or an unwritten concealment in this case is part of a more serious crime and is covered by the article of the Criminal Code providing for responsibility for a crime committed in complicity.
The pre-promised acquisition or sale of property knowingly obtained by criminal means is an independent component of a criminal offense and entails liability under article 196 of the Criminal Code, that is, under a special provision of the criminal law.
The pre-promised acquisition or sale of property obtained by criminal means, as well as the pre-promised concealment, is recognized as complicity in a criminal offense in the form of complicity.
A promise made in advance to purchase or sell property knowingly obtained by criminal means, in cases where it incites the perpetrator to commit criminal intent and thereby incites him to commit a criminal offense, should be recognized not as complicity, but as incitement, qualifying the actions of the perpetrator under the relevant article of the Criminal Code, providing for responsibility for a specific criminal offense, with reference to part four. Article 28 of the Criminal Code.
The Criminal law does not establish a lesser degree of danger of complicity compared to other types of complicity. The public danger of the accomplice's actions is expressed in the fact that, although he does not directly participate in the commission of a criminal offense, his actions strengthen the perpetrator's determination to commit a criminal offense and significantly facilitate its commission. In this regard, the accomplice is subject to responsibility and punishment on an equal basis with other accomplices in a criminal offense, taking into account the provisions of article 52 of the Criminal Code. In this case, an accomplice, taking into account the circumstances of the case, may be given both a less severe and a more severe punishment by the court than other accomplices.
According to article 4 of the Constitution of the Republic of Kazakhstan, this regulatory resolution is included in the current law, is generally binding and enters into force from the date of the first official publication.
Chairman
The Supreme Court
Republic of Kazakhstan
Judge
The Supreme Court
Republic of Kazakhstan,
Secretary of the plenary session
K. MAMIE
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