On some issues of the courts' application of legislation on liability for banditry and other criminal offenses committed in complicity

Normative Resolution of the Supreme Court of the Republic of Kazakhstan dated June 21, 2001 No. 2.

      The footnote. The title is amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 3 (effective from the date of the first official publication).

     In connection with the issues that arise for the courts when applying legislation providing for liability for the commission of a criminal offense by a group of persons, a group of persons by prior agreement, a gang or another criminal group, the Supreme Court of the Republic of Kazakhstan decides:

     The footnote. The preamble as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 3 (effective from the date of the first official publication).

To draw the attention of the courts to the increased risk of criminal offenses committed by a group of persons, a group of persons by prior agreement, a gang or another criminal group.

     The footnote. Paragraph 1 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 3 (effective from the date of the first official publication).

Complicity in a criminal offense can only take place when committing an intentional criminal offense, therefore, the commission of a criminal offense by several persons through negligence cannot be considered as the commission of a criminal offense by a group of persons.

     The footnote. Paragraph 2 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 3 (effective from the date of the first official publication).

When giving a legal assessment of the actions of the perpetrators as a criminal offense committed in the presence of qualifying signs by a "group of persons", a "group of persons by prior agreement", or a "criminal group", it is necessary to proceed from the requirements provided for in Article 31 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code).

      Qualifying signs of the commission of a criminal offense by a "group of persons" or "a group of persons by prior agreement" may be imputed in cases where the criminal offense was committed by two or more accomplices of the criminal offense.

      When classifying the actions of those responsible on the basis of committing a criminal offense by a "group of persons by prior agreement", it is necessary to find out whether there was an agreement between two or more persons expressed in any form to commit a criminal offense, whether these persons colluded before the start of actions directly aimed at committing a criminal offense, that is, before the objective side of the composition of the criminal offense was fulfilled. at least one performer.

      A criminal offense is qualified on the basis of a "group of persons by prior agreement" and in cases where the common efforts of two or more persons are combined to commit it and the actions of each of the accomplices are a necessary condition for the actions of other accomplices, according to the preliminary distribution of roles, and are causally related to the common one resulting from the activities of all accomplices., a criminal result. In such cases, it is not necessary for two or more perpetrators to participate in a criminal offense; one performer is sufficient if there are other types of accomplices.

      The responsibility of the organizer, instigator or accomplice comes under the relevant article of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code), which provides for responsibility for a specific criminal offense, with reference to article 28 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code), except in cases when they were simultaneously co-perpetrators of a criminal offense.

      A person who was not in a preliminary conspiracy with other accomplices of a criminal offense, but joined them and took direct part in the course of its commission by other persons, must be responsible for the specific actions actually committed by him as a co-perpetrator of a criminal offense.

     A criminal offense may be qualified on the basis of commission by a criminal group if it is committed by an organized group, a criminal organization, a criminal community, a transnational criminal organization, a transnational criminal community, a terrorist group, an extremist group, a gang or an illegal paramilitary formation.

     The footnote. Paragraph 3 as amended by the normative resolution of the Supreme Court of the Republic of Kazakhstan dated 22.12.2008 No. 15 (for the procedure of entry into force, see paragraph 2); as amended by the normative resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 3 (effective from the date of the first official publication).

It should be borne in mind that the qualifying signs of a criminal offense related to the identity of the perpetrator may be attributed to other accomplices (the organizer, instigator and accomplice) if they were aware that the perpetrator has these qualifying signs, and their actions contributed to the commission of criminal offenses by this particular perpetrator.

     The footnote. Paragraph 4 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 3 (effective from the date of the first official publication).

The preliminary agreement of a group of persons to commit criminal offenses should be understood as an agreement between two or more persons to commit a specific criminal offense before they commit actions that form the objective side of the criminal offense.

     In cases where some participants in a criminal offense commit a criminal offense by prior agreement and other persons join them by prior agreement before the completion of the objective side, then the actions of both those and others should be qualified as the commission of a criminal offense by a group of persons by prior agreement.

     The footnote. Paragraph 5 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 3 (effective from the date of the first official publication).

In accordance with the third part of Article 31 of the Criminal Code, a criminal group should be understood not only as an organized group, a criminal organization, a criminal community, a transnational criminal organization, a transnational criminal community, the responsibility for the creation of which is provided for in the first parts of articles 262, 263, 264, 265 of the Criminal Code, but also a terrorist group, an extremist group, a stable armed group (gang) and illegal paramilitary formation, the responsibility for the creation of which is provided for in the first parts of articles 257, 268 and 267 of the Criminal Code.

      At the same time, a gang differs from a criminal group by being armed and having a criminal purpose - attacking citizens and organizations.

     The footnote. Paragraph 6 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 3 (effective from the date of the first official publication).

The purpose of creating a gang according to the first part of Article 268 of the Criminal Code is to commit attacks on citizens and organizations. At the same time, the law does not specify which criminal offenses are committed by a gang during attacks. This may be not only the direct seizure of property, money or other valuables of a citizen or organization, but also murder, rape, extortion, destruction or damage to other people's property, etc.

    The footnote. Paragraph 7 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 3 (effective from the date of the first official publication).

An attack in banditry should be understood as actions aimed at achieving a criminal result by using violence against the victim, or creating a real threat of its immediate use.

      As banditry, provided there are other mandatory signs of this crime, it is necessary to consider cases of attacks on institutions, enterprises, organizations in which there were no people and violence was not used against them, the facts of destruction of property during the attack, in which citizens were not injured (office explosion, arson apartment, car, etc.) At the same time, it should be assumed that gang attackers are ready to use violence against any person who will prevent them from achieving their criminal goals.

      An attack by an armed gang is considered to have taken place even in cases where the weapons available to the gang members were not used.

An obligatory sign of a gang is its armament, which implies that the gang members have factory-made firearms or bladed weapons, as well as improvised explosive devices, as well as gas and pneumatic weapons.

      When deciding on the recognition of weapons of items used by gang members in an attack, one should be guided by the provisions of the Law of the Republic of Kazakhstan dated December 30, 1998 No. 339 "On State Control over the turnover of certain types of weapons".

      Armament is determined by the presence of weapons in at least one of the gang members and the awareness of other gang members about it.

      The use by participants in a crime of weapons unsuitable for their intended use or their models cannot be considered as a sign of their armament.

      If necessary, an expert examination should be ordered to determine whether the items used are weapons.

     The footnote. Paragraph 9 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).

Since being armed is one of the mandatory signs of a gang, the actions of the organizer, leader or member of the gang in the illegal trafficking of weapons, ammunition, explosives and explosive devices related to the organization of the gang and its functioning are not subject to additional qualification under Article 287 of the Criminal Code, since these actions are fully covered by the mandatory sign of the gang — his armament.

      The commission by gang members of actions related to illegal arms trafficking for other purposes (for example, arms trafficking, theft of weapons, etc.) should be qualified according to the totality of criminal offenses provided for in Article 268 of the Criminal Code and the corresponding articles of the Special Part of the Criminal Code.

     The footnote. Paragraph 10 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 3 (effective from the date of the first official publication).

The fact that a group of persons has committed a number of crimes by prior agreement over a certain period of time through coordinated actions, permanent forms and methods of criminal activity is not a sufficient basis for recognizing the existence of a criminal group.

     A criminal group differs from a group of individuals by prior agreement in higher organization and stability. Its features, in particular, may include: the presence of a leader(s) and subordination to him (them) of other members, awareness by other participants of their membership in it, the presence of a certain hierarchy and common material and financial resources, compliance with the rules (discipline) established in the criminal group, etc.

      The signs of a criminal group, in accordance with the requirements of article 113 of the Criminal Procedure Code of the Republic of Kazakhstan, are subject to proof along with other signs of a crime.

     The footnote. Paragraph 11 is 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 creation of a gang or other criminal group should be understood as the commission of any active purposeful actions, which resulted in the actual formation of these organized groups or communities. These actions can be expressed in the search for participants, weapons, ammunition, communications equipment, documents, transport and other material assets, the development of structures and criminal plans, and the recruitment of people.

      The creation of a gang or other criminal group is a complete crime, regardless of whether any crimes have been planned or committed. The very process of forming these criminal formations should be considered as preparation for their creation.

     If it is established that these formations were supposed to be created to commit a specific grave or especially grave crime (for example, murder), then the actions of the individuals should also be qualified as preparation for the commission of this crime.

     The footnote. Paragraph 12 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 3 (effective from the date of the first official publication).

The leadership of a gang or other criminal group is understood as decision-making related to both the planning, financial support and organization of criminal activities of a gang, as well as the preparation and commission of specific criminal offenses by it.

      The leadership of a gang or other criminal group can be carried out by either one or several persons.

     A gang or other criminal group can exist without a leader. These include cases when members of a small organized criminal group or gang, without singling out a leader from their midst, resolve issues of criminal activity together and act, as a rule, as co-perpetrators of their criminal offenses.

     The footnote. Paragraph 13, as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 03/31/2017 No. 3 (effective from the date of the first official publication); dated 12/11/2020 No. 6 (effective from the date of the first official publication).

Participation in a gang or other criminal group may be expressed by joining these criminal formations, committing acts aimed at financing, providing weapons, transport, searching for facilities, providing information, etc., as well as directly committing planned criminal offenses.

     Participation in a gang or other criminal group is considered a complete crime from the moment when a person became aware of the criminal nature of the gang or criminal community and consented to his participation (membership), regardless of whether he participated in the committed criminal offenses.

     The footnote. Paragraph 14 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 3 (effective from the date of the first official publication).

Based on the requirements of the fourth part of Article 31 of the Criminal Code, the actions of a person who created a gang or other criminal group, or led them, are subject to qualification according to the first parts of the articles. 257, 262, 263, 264, 265, 267 and 268 of the Criminal Code, as well as under the relevant articles of the Special Part of the Criminal Code, providing for liability for crimes committed by a gang or other criminal offenses committed by a criminal group, if they were covered by his intent. At the same time, qualification under the relevant article of the Special Part of the Criminal Code is carried out with reference to article 28 of the Criminal Code, except in cases where the organizer (head) is simultaneously a co-perpetrator of a criminal offense.

     The actions of the organizer or the head of a gang or other criminal group, who was directly involved in the criminal offenses committed by the gang or criminal group, are additionally qualified according to the second parts of the articles 257, 262, 263, 264, 265, 267 and 268 of the Criminal Code are not subject to.

      The actions of the participants (members) of a gang or other criminal group should be qualified according to the second parts of the articles. 257, 262, 263, 264, 265, 267 and 268 of the Criminal Code, as well as under the relevant articles of the Special Part of the Criminal Code for criminal offenses in the preparation or commission of which they participated.

     The footnote. Paragraph 15 as amended by the regulatory decree of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 3 (effective from the date of the first official publication).

A person who participated in criminal offenses committed by a gang or other criminal group is liable, respectively, according to the second parts of the articles. 257, 262, 263, 264, 265, 267 and 268 of the Criminal Code in cases where it was aware that it was an accomplice in a criminal offense committed by a gang. If a person is unaware of the existence of a criminal organization, he is responsible only for the criminal offense in which he participated.

     The footnote. Paragraph 16 as amended by the regulatory decree of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 3 (effective from the date of the first official publication).

When qualifying criminal offenses committed as part of a gang or other criminal group, the requirements of the first part of Article 13 of the Criminal Code should be strictly observed, stating that in the case of a combination of criminal offenses, a person is criminally responsible for each committed criminal offense under the relevant article or part of the Criminal Code, if the signs of the committed acts are not covered by the norm of one article or part of the article of the Criminal Code which provides for a more severe punishment.

   The footnote. Paragraph 17 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 3 (effective from the date of the first official publication).

When distinguishing banditry from other criminal offenses, special attention should be paid to the circumstances that form the signs of banditry.

      Banditry and robbery, committed by prior agreement by a group of people with the use of weapons, differ in a set of characteristics that characterize these criminal offenses. At the same time, for banditry, it is mandatory to have a stable connection between gang members, the organization of their actions, the preparation and planning of criminal offenses, as well as armed. These groups should also be distinguished by the purpose of committing criminal offenses: in banditry, the purpose is to attack citizens or organizations, in robbery there is necessarily a selfish motive and the purpose is to steal someone else's property.

      If it is established in the case that the persons specifically agreed to create a stable organized criminal group, discussed the issue of armament and acquired weapons, outlined targets for attacks on citizens and organizations, and committed such criminal offenses, then in such cases the actions of the perpetrators should be qualified both under the relevant part of Article 268 of the Criminal Code and under the relevant articles of the Criminal Code. providing for liability for criminal offenses committed. In other cases, in the absence of data on the creation of a stable armed criminal group, attacks on citizens and organizations, and the commission of other criminal offenses by a group of persons by prior agreement and with the use of weapons should be qualified only under articles of the Criminal Code providing for liability for these criminal offenses.

     When distinguishing banditry from extortion committed by prior agreement by a group of individuals, it should be borne in mind that in banditry, violence acts as a means of committing criminal offenses, in particular, the attack is accompanied by immediate seizure of the victim's property, and in extortion, violence is only a form of influence and serves to reinforce the threat to use violence in the future on the victim, as revenge for refusal to comply with the demand of extortionists, and may occur not only in relation to the victim himself, but also in relation to his relatives.

     The footnote. Paragraph 18 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 3 (effective from the date of the first official publication).

To draw the attention of the courts to the importance of strict observance of the principle of individualization of responsibility when imposing punishment on persons guilty of committing criminal offenses as part of a gang or other criminal group.

     Courts should carefully clarify and take into account all the circumstances of the case and information about the identity of the defendants, their role and degree of participation in the organization and activities of the criminal group, the severity of the consequences resulting from their actions, and others relevant to sentencing.

     The footnote. Paragraph 19 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 3 (effective from the date of the first official publication).

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.

     The footnote. The regulatory resolution was supplemented by paragraph 20 in accordance with the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 3 (effective from the date of the first official publication).

     Chairman of the Supreme Court

Republic of Kazakhstan

Secretary of the Plenum, Judge of the Supreme Court

Republic of Kazakhstan

      (Experts: Umbetova A.M., Sklyarova I.V.)

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