Article 256. Propaganda of Terrorism or Public Calls to Commit an Act of Terrorism

Commentary on the Article of the Criminal Code of the Republic of Kazakhstan

1. Propaganda of terrorism or public calls to commit an act of terrorism, as well as the production, possession for the purpose of distribution, or distribution of materials containing such content —

shall be punishable by imprisonment for a term of five to nine years, with confiscation of property.

2. The same acts, if committed by a person using their official position, or by a leader of a public association, or through the use of mass media or telecommunication networks, or by a group of persons or a group of persons acting pursuant to a prior conspiracy, including through the use of funds received from foreign sources —

shall be punishable by imprisonment for a term of seven to twelve years, with confiscation of property.

Public danger of the aforementioned crime lies in the fact that propaganda of terrorism and public calls to commit an act of terrorism destabilize the situation in society, which is associated with the creation of a social and psychological atmosphere of public anxiety, a favourable environment for the commission of terrorist acts, and the cultivation of violence and aggression in society.

The object of the crime under consideration is public security.

The subject matter of the crime is terrorist materials, i.e. any information materials containing information about the methods and means of committing an act of terrorism, as well as signs and (or) calls for terrorist activities, or substantiating or justifying the necessity of carrying out such activities: posters, newspapers, brochures, books, audio and video recordings of speeches, and various items containing calls to engage in terrorist activities.

The objective element is characterized by actions consisting of propaganda of terrorism or public calls to commit an act of terrorism, as well as the production, possession for the purpose of distribution, or distribution of materials containing such content.

In accordance with paragraph 3 of Article 20 of the Constitution of the Republic of Kazakhstan, propaganda or advocacy of the violent alteration of 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, shall not be permitted.

According to subparagraph 5) of Article 1 of the Law of the Republic of Kazakhstan dated July 13, 1999, “On Countering Terrorism”, terrorism is an ideology of violence and a practice of influencing decision-making by state bodies, local self-government bodies or international organizations through the commission or threat of commission of violent and (or) other criminal acts associated with intimidating the population and aimed at causing harm to individuals, society and the State.

In accordance with subparagraph 6-1) of Article 1 of the aforementioned Law, a call to commit an act of terrorism is an appeal expressed publicly or reflected in disseminated information material that influences the consciousness, will and behaviour of an individual for the purpose of inducing that individual to commit an act of terrorism.

Subparagraph 14-1) of Article 1 of the aforementioned Law defines terrorist materials as any information materials containing information about the methods and means of committing an act of terrorism, as well as signs and (or) calls for terrorist activities, or substantiating or justifying the necessity of carrying out such activities.

Propaganda of terrorist ideas and dissemination of terrorist materials, including through the use of mass media or telecommunication networks, also constitute terrorist activities (subparagraph 18) of Article 1 of the Law (paragraph 7).

Propaganda is the in-depth explanation and dissemination, in any form (through mass media and public speeches by individuals), of views, ideas, doctrines and knowledge, as well as ideological influence on the masses.

Propaganda of terrorism means actively influencing people's consciousness and will for the purpose of arousing in them a desire to commit a terrorist act. Propaganda may take any form: oral, written, through the use of mass media, publication on the Internet, creation of literary works, etc.

Paragraph 3 of Clause 16 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan “On Certain Issues of Judicial Practice in the Application of Legislation on Terrorist and Extremist Crimes” states that propaganda of terrorism should be understood as the dissemination, by any means, of materials and information containing the ideology of violence and the practice of terrorism, through influencing the consciousness and will of an individual (individuals) for the purpose of arousing in them a desire to engage in terrorist activities, or substantiating or justifying the necessity of carrying out such activities.

Calls are oral or written appeals addressed to a sufficiently large number of listeners with the purpose of convincing them of the necessity of terror. Calls must necessarily be public in nature, that is, they must be made in the presence of several persons and addressed to them. Unlike propaganda, the influence here is direct. In addition, public calls must be subordinate to a strictly defined objective, namely, the commission of an act of terrorism.

The public nature of calls is expressed in the fact that they are made directly in the presence of third parties or, in the case of their written form, with the expectation that other persons will subsequently become acquainted with them (for example, by posting posters or slogans of the relevant content). Most often, calls are addressed to a sufficiently large number of listeners: a crowd, an assembly, or the population of a region or country.

According to paragraph 18 of the aforementioned Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan, public calls to commit an act of terrorism under Part 1 of Article 256 of the Criminal Code should be understood as appeals expressed in any form (oral or written).

Calls must be public in nature. Public calls to commit an act of terrorism shall be considered a completed criminal offence from the moment at least one appeal is publicly proclaimed (disseminated), regardless of whether other citizens were successfully induced to commit such an act.

The issue of whether calls to commit an act of terrorism are public must be resolved by courts taking into account the place, method, circumstances and other circumstances of the case, for example, addressing a group of people in public places, at assemblies, rallies, demonstrations, distributing leaflets, displaying posters, or disseminating appeals through mass electronic messaging.

If public calls to commit an act of terrorism are made using mass media or telecommunication networks (periodical printed publications, television or radio channels, Internet resources and other means), the act shall be classified under Part 2 of Article 256 of the Criminal Code.

Where public calls to commit an act of terrorism are made by means of mass messaging to mobile subscribers using electronic or information and telecommunication networks, the crime shall be considered completed from the moment the appeals are posted on the aforementioned public networks (for example, on websites, forums or blogs) or messages are sent to other persons.

Production shall mean the creation, by any means, of materials propagating terrorism or calling for the commission of an act of terrorism, including writing a book, article or screenplay, filming a motion picture or video, and the like, as well as reproducing already existing materials. The term “production” implies both the process of creation itself and its result, that is, obtaining completed material propagating terrorism or calling for the commission of an act of terrorism.

Possession shall mean any intentional actions associated with terrorist propaganda or calls to commit an act of terrorism materials being under a person's control (on their person, in premises, in a hiding place or in other locations). The duration of possession does not affect the legal classification.

Distribution of materials shall be understood as actions aimed at transferring materials containing propaganda or calls to commit an act of terrorism to third parties for the purpose of inducing them to engage in terrorist activities. Information containing general information and explaining the essence of the phenomenon, in which there are no signs of propaganda of terrorism and (or) calls to commit an act of terrorism, does not constitute terrorist materials.

By its legal construction, the elements of the crime are formal. Propaganda of terrorism shall be recognized as a completed crime from the moment actions are taken to disseminate the ideology of violence and the practice of terrorism, when the information has in fact been perceived or independently accessed by at least one outside person, regardless of whether the offender succeeded in provoking the commission of an act of terrorism. The method of dissemination is irrelevant for holding a person criminally liable for propaganda of terrorism. Propaganda may be carried out through oral speeches or the distribution of written or printed materials, including through the use of mass media or telecommunication networks. Public calls to commit an act of terrorism shall be considered a completed crime from the moment of making a public appeal to an indefinite group of persons; production — from the moment of creating materials propagating the ideology of terrorism; possession — from the moment prohibited materials are located in premises, on guarded territories, in hiding places or in any other locations ensuring their safekeeping; distribution — from the moment the aforementioned materials are transferred to a third party.

The subjective element of the crime is characterized by direct intent. The person realizes that, in one way or another, they are disseminating among a broad circle of persons ideas that justify an act of terrorism and incite its commission, publicly calling for the commission of an act of terrorism, foresees the occurrence of socially dangerous consequences and desires them. The motives for the crime may be any. The production and possession of such materials require a special purpose — their subsequent distribution.

The subject is a physically competent and sane individual who has reached the age of 16.

Part 2 of Article 256 of the Criminal Code provides for the following qualifying circumstances in the commission of the same acts:

• by a person using their official position;
• by a leader of a public association;
• through the use of mass media or telecommunication networks;
• by a group of persons or a group of persons acting pursuant to a prior conspiracy, including through the use of funds received from foreign sources.

Service means the performance of a particular public function as a permanent professional occupation. A person holding any type of public service position may take advantage of their official position (official powers). This may be done not only by officials but also by other persons holding relevant positions in organizations, enterprises and institutions, regardless of their form of ownership. Therefore, the use of official position associated with the performance of official duties primarily means the abuse of one's official position, deriving advantages and benefits from one's official powers established by law or another regulatory legal act, or using official connections and the authority of one's position, regardless of the type of service (state or non-state).

A leader of a public association is the head of a public association, as well as another participant in a public association who, through their influence and authority, is capable of independently exercising managerial influence over the activities of that public association (subparagraph 21) of Article 3 of the Criminal Code). The commission by an official or a leader of a public association of actions aimed at propagating terrorism or making public calls to commit an act of terrorism, as well as distributing materials containing such content, presupposes the use of their official or public position for these purposes.

Article 255. Act of Terrorism

An act of terrorism, that is, the commission of an explosion, arson or other actions creating a danger of loss of human life, causing significant property damage or the occurrence of other socially dangerous consequences, if these actions are committed for the purpose of disrupting public security, intimidating the population, influencing decision-making by state bodies of the Republic of Kazakhstan, a foreign state or an international organization, provoking war or complicating international relations, as well as the threat of committing the aforementioned actions for the same purposes —

shall be punishable by imprisonment for a term of six to ten years, with confiscation of property.

The same acts, if committed:

• repeatedly;
• with the use of weapons or objects used as weapons, explosives or explosive devices capable of creating a real threat to the life and health of citizens —

shall be punishable by imprisonment for a term of eight to twelve years, with confiscation of property.

The acts provided for in Parts One or Two of this Article, if they:

• are associated with the use or threat of use of weapons of mass destruction, radioactive materials, and the commission or threat of commission of mass poisonings, the spread of epidemics or epizootics, as well as other actions capable of causing mass loss of life;
• have negligently resulted in the death of a person or other grave consequences —

shall be punishable by imprisonment for a term of twelve to seventeen years, with confiscation of property, with or without deprivation of citizenship of the Republic of Kazakhstan.

An encroachment upon a person's life committed for the purpose of disrupting public security, intimidating the population, influencing decision-making by state bodies of the Republic of Kazakhstan, a foreign state or an international organization, provoking war or complicating international relations, as well as an encroachment upon the life of a state or public figure committed for the same purposes, and also for the purpose of terminating their state or other political activities or out of revenge for such activities, or an encroachment upon a person's life associated with an attack on persons or organizations enjoying international protection, buildings or structures, the taking of hostages, buildings, structures, means of communication and communications facilities, hijacking, as well as the seizure of an aircraft or watercraft, railway rolling stock or other public transport —

shall be punishable by imprisonment for a term of fifteen to twenty years or life imprisonment, with or without deprivation of citizenship of the Republic of Kazakhstan, and with confiscation of property.

Note. A person participating in the preparation of an act of terrorism shall be exempt from criminal liability if, through timely warning of state authorities or by other means, they contributed to the prevention of the act of terrorism, provided that their actions do not contain the elements of another crime.

Terrorism is one of the most dangerous crimes of modern times and is international in nature. Due to its geopolitical position, shaped by changes in the foreign policy situation, including instability in countries of the Middle and Near East geographically close to the Central Asian region, Kazakhstan has faced the problem of international terrorism and the commission of acts of terrorism on its territory. Tragic events in the western and southern parts of the country, as well as the increasing number of individuals assisting religious extremism and terrorism, have demonstrated the full severity of this problem.

The first attempt to disclose the content of the concept of “terrorism” was made at the Third International Conference for the Unification of Criminal Legislation, held in Brussels in 1930. At present, the distinguishing characteristics of terrorism have already been sufficiently comprehensively described in various international documents and have received legislative recognition. The following have been adopted: the Law of the Republic of Kazakhstan dated July 13, 1999, “On Countering Terrorism”; the Law dated February 18, 2005, “On Countering Extremism”; and the Resolution of the Government of the Republic of Kazakhstan dated December 22, 2010, “On Approval of the Rules for Organizing Activities in the Field of Countering Terrorism in the Republic of Kazakhstan”. These legal acts establish the legal framework for the prevention of and counteraction to terrorism and extremism, define the basic conceptual framework and the competence of state bodies in this area, as well as the fundamental principles for ensuring the protection of citizens' rights and freedoms in this sphere.

Kazakhstan is a party to all fundamental universal international instruments in the field of combating terrorism. This is evidenced by the list of the principal legal acts: the Law of the Republic of Kazakhstan dated October 23, 2000, “On Ratification of the Treaty on Cooperation among the Member States of the Commonwealth of Independent States in Combating Terrorism”; the Law dated April 18, 2002, “On Ratification of the Shanghai Convention on Combating Terrorism, Separatism and Extremism”; the Law dated July 4, 2002, “On the Accession of the Republic of Kazakhstan to the International Convention for the Suppression of Terrorist Bombings”; the Law dated October 2, 2002, “On the Accession of the Republic of Kazakhstan to the International Convention for the Suppression of the Financing of Terrorism”; the Law dated May 14, 2008, “On Ratification of the International Convention for the Suppression of Acts of Nuclear Terrorism”; and the Law dated January 10, 2011, “On Ratification of the Convention of the Shanghai Cooperation Organization Against Terrorism”.

The Law of the Republic of Kazakhstan dated July 13, 1999, “On Countering Terrorism”, defines terrorism as an ideology of violence and a practice of influencing decision-making by state bodies, local self-government bodies or international organizations through the commission or threat of commission of violent and (or) other criminal acts associated with intimidating the population and aimed at causing harm to individuals, society and the State.

The commission of a terrorist act causes negative condemnation not only within each particular state but also by the international community as a whole. Terrorist acts may be carried out by any means, but they are always aimed at undermining state authority and creating a feeling of insecurity and fear among the population.

The public danger of an act of terrorism lies in the fact that it is one of the most dangerous forms of criminal encroachment, based on the perpetrator's desire to instil fear and panic in others, paralyse the socially beneficial activities of citizens and the normal functioning of government and administration bodies, and thereby achieve their antisocial objectives.

The nature of the public danger posed by terrorism and other terrorist-related crimes is determined by the importance of the interests and objects against which they are directed.

The object of an act of terrorism is public security.

The concept of “security” means the absence of danger or a condition in which no danger threatens anyone or anything. It is also used to mean “protected, safeguarded against danger, posing no danger to anyone or anything; harmless”.

National security should be considered a state of protection of vital national and state interests against internal and external threats arising in individual (key) spheres of society's life. In accordance with this approach, the Law of the Republic of Kazakhstan dated January 6, 2012, “On National Security of the Republic of Kazakhstan”, identifies the following types of national security: public, military, political, economic, informational and environmental security.

Public security as a type of national security is a state of protection of the life, health and well-being of citizens, the spiritual and moral values of Kazakhstani society and the social security system against real and potential threats, under which the integrity of society and its stability are ensured (subparagraph 1) of Article 4 of the Law of the Republic of Kazakhstan “On National Security of the Republic of Kazakhstan”).

Public security represents such a condition of society (a system of its properties and capabilities) in which, through internal social mechanisms mediated by the functioning of various state and public institutions, its stable condition and development are maintained, conditions are ensured for the realization of the interests of the individual, society and the State, and, at the same time, their protection (with awareness thereof by people) against threats arising from unlawful encroachments, as well as in emergency situations of a social, natural and technological nature.

Additional objects may include the life and health of citizens, property, the established procedure of administration, the activities of a state authority, an international organization, etc. Therefore, terrorism should be classified among multi-object crimes.

The objective element of an act of terrorism is complex in nature and is expressed in the commission of an explosion, arson or other actions creating a danger of loss of human life, causing significant property damage or the occurrence of other socially dangerous consequences, as well as in the threat of committing such actions.

The Law of the Republic of Kazakhstan “On Countering Terrorism” defines an act of terrorism as the commission or threat of commission of an explosion, arson or other actions creating a danger of loss of human life, causing significant property damage or the occurrence of other socially dangerous consequences, provided that these actions are committed for the purpose of disrupting public security, intimidating the population or influencing decision-making by state bodies of the Republic of Kazakhstan, foreign states or international organizations, as well as an encroachment upon a person's life committed for the same purposes, and an encroachment upon the life of a state or public figure committed for the purpose of terminating their state or other political activities or out of revenge for such activities.

An explosion means rendering an object unusable or destroying people through the use of a TNT or other charge, in other words, through the use of the destructive energy of an explosive wave. An explosion results in the formation of highly heated gas under very high pressure which, as it expands, exerts mechanical force (pressure and damage) on surrounding objects. By their nature, explosions are classified as physical, nuclear (atomic), electromagnetic, mechanical and chemical. Most often, an explosion occurs as a result of the release of chemical energy from explosive substances.

Arson means the performance by the offender of unlawful actions involving the use of the destructive force of fire. Arson is the deliberate starting of a fire, i.e. an uncontrolled combustion process accompanied by the destruction of material assets and creating a danger of loss of human life.

Other actions in the context of an act of terrorism should be understood to include the destruction of buildings and structures, the organization of accidents and crashes, the disorganization of the work of government and administration bodies, the dissemination of pathogenic bacteria capable of causing epidemics and epizootics, other bacteriological or chemical contamination of land, water, air, food products, etc.

An obligatory condition, expressed alternatively, is the creation of a danger of:

• loss of human life;
• causing significant property damage;
• the occurrence of other socially dangerous consequences.

The danger of loss of human life means that at least one person was threatened with death.

The significance of property damage in an act of terrorism should be determined depending on the value and importance of the destroyed or damaged property. The procedure for compensation for property damage caused to individuals and legal entities as a result of an act of terrorism is established by the Rules for Compensation for Property Damage Caused to Individuals and Legal Entities as a Result of an Act of Terrorism, approved by Resolution of the Government of the Republic of Kazakhstan dated August 28, 2013.

It is more difficult to assess the nature of the danger of causing damage to religious and cultural values, as well as to objects of symbolic significance, since this requires forensic examinations, including comprehensive examinations. Other socially dangerous consequences shall mean all other harm that does not fall within the characteristics of loss of human life or significant property damage. These may include causing bodily injury of varying degrees of severity to citizens, disrupting the activities of state authorities and administration bodies, suspending the activities of enterprises, institutions and organizations, disrupting transport traffic, etc.

Clause 8 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated December 8, 2017, “On Certain Issues of Judicial Practice in the Application of Legislation on Terrorist and Extremist Crimes”, states:

“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 the aforementioned actions were of an intimidating nature for the population and created a real danger of loss of human life, causing significant property damage or the occurrence of other socially dangerous consequences.

At the same time, the danger of loss of human life, causing significant property damage or the occurrence of other socially dangerous consequences must be real, which shall be determined in each particular case taking into account the place, time, instruments, means, method of commission of the crime and other circumstances of the case (information concerning the number of people who were in the area of the explosion, the power and destructive capability of the explosive device used, and the like).

Other actions creating a danger of loss of human life, causing significant property damage or the occurrence of other socially dangerous consequences, as specified in Article 255 of the Criminal Code, should be understood as intentional actions comparable in their consequences to an explosion or arson (organizing accidents and crashes, destroying dams, damaging water supply systems, power lines and other public life-support facilities, spreading pathogenic microbes capable of causing an epidemic or epizootic, radioactive, chemical, biological (bacteriological) and other contamination of an area, armed attacks on populated areas, shelling residential buildings, schools, hospitals, administrative buildings, locations (deployment sites) of military personnel or employees of law enforcement, special or other state bodies; seizing and (or) destroying buildings, railway stations, ports, cultural or religious structures).

When deciding whether property damage is significant, courts should proceed from the value and importance of the destroyed or damaged property and material assets, as well as the actual expenses required to restore (repair) the damaged property. Significant property damage caused as a result of an act of terrorism shall be classified under Part One of Article 255 of the Criminal Code (in the absence of other qualifying circumstances under Article 255 of the Criminal Code) and does not require additional classification under Articles 202 and 203 of the Criminal Code.

For the purposes of Part One of Article 255 of the Criminal Code, other socially dangerous consequences may include, in particular, causing moderate bodily injury to several persons, prolonged disruption of the operation of an enterprise (enterprises) and (or) institution (institutions), disorganization of the activities of state authorities and local self-government bodies, and substantial deterioration of the environmental situation (for example, pollution of water and the atmosphere, land degradation and other negative changes in the environment requiring significant material expenses and a long period of time to eliminate their consequences).

When deciding whether the disruption of the operation of an enterprise or institution was prolonged, courts should proceed from the specific circumstances of the case, taking into account the duration of the suspension of operations, the specific nature of their activities, the amount of losses caused and other circumstances.”

By its legal construction, the elements of the crime are formal. An act of terrorism shall be considered completed from the moment the offender performs the actions specified in the disposition of Part 1 of Article 255 of the Criminal Code of the Republic of Kazakhstan. The occurrence of consequences is not mandatory; it is sufficient that an actual danger of loss of human life, significant property damage or other socially dangerous consequences has been created.

Criminal liability for an act of terrorism also includes the threat of committing the aforementioned actions. A threat as a form of psychological violence is characterized by the following main features:

• an externally expressed determination to commit an action aimed at causing harm to a legally protected interest;
• reality, i.e. the ability of the threat to create a belief in the possibility of its implementation (where the offender has the ability to carry it out). A threat that, for objective reasons, was not perceived by the victim and is objectively impossible to carry out cannot be recognized as real;
• actuality, i.e. the objective existence of the threat, its association with information about a specific danger, its external manifestation and degree of intensity;
• definiteness — the threat must contain an indication of a specifically defined act.

A threat to commit an act of terrorism may be open or anonymous and may be addressed both to the public and to state authorities. The form in which it is disseminated is irrelevant for the classification of the crime: orally, in writing, through information media, etc.

If the threat proves to be unreal and is expressed in nothing other than a statement of intention, even if it was aimed at intimidating the population and accompanied by certain demands, such a threat cannot be regarded as an act of terrorism. In this case, the actions of the offender should be classified as knowingly false reporting of an act of terrorism (Article 273 of the Criminal Code), since they are objectively incapable of causing the consequences that arise as a result of the commission of acts of terrorism.

Clause 9 of the aforementioned Regulatory Resolution states that a threat to commit an act of terrorism means actions accompanied by a firm declaration indicating the clearly expressed intention of the offender to commit an explosion, arson or other actions creating a danger of loss of human life, causing significant property damage or the occurrence of other socially dangerous consequences, for special purposes.

The criterion for assessing the reality of a threat is the existence of sufficient grounds to fear that the threat will be carried out.

A threat to commit an explosion, arson or other actions that intimidate the population and create a danger of loss of life of one or more persons, causing significant property damage or the occurrence of other socially dangerous consequences, falls within the category of formal offences and shall be considered a completed crime at the moment the threat to commit the aforementioned actions is communicated to the recipient, provided that the recipient perceives the threat as real.

A threat may be addressed to state authorities, local self-government bodies, organizations, state or public figures, and may be open or anonymous.

A threat may be expressed in various ways, for example, through an oral statement, a written appeal, a telephone message, dissemination using technical means, information and telecommunication networks, mass media or computer technologies.

Courts should bear in mind that a threat to commit an act of terrorism differs from knowingly false reporting of an act of terrorism (Article 273 of the Criminal Code) in that false reporting of an act of terrorism means information received through the communication channels of law enforcement agencies and emergency response services concerning a knowingly nonexistent threat of an act of terrorism. In other words, in the case of false reporting, no threat of an act of terrorism exists, whereas in the case of a threat to commit an act of terrorism, the offender pursues a special purpose.

If an offender, for the purpose of committing an act of terrorism, attempts to carry out an explosion, arson or other actions creating a danger of loss of human life, causing significant property damage or the occurrence of other socially dangerous consequences, but is unable to carry out these actions due to circumstances beyond their control, the act shall be classified as an attempted act of terrorism.

The subjective element is characterized by intentional guilt in the form of direct intent. The person realizes that they are committing an explosion, arson or other actions creating a danger of loss of human life, causing significant property damage or the occurrence of other socially dangerous consequences, or threatening to commit such actions, and desires to commit those actions.

The principal feature of the subjective element of an act of terrorism is the special purpose of its commission — disrupting public security, intimidating the population, influencing decision-making by state bodies of the Republic of Kazakhstan, foreign states or an international organization, provoking war or complicating international relations.

Disruption of public security may be expressed in the destruction, in a particular settlement, district, region or society as a whole, of the established social environment with which citizens associate their peaceful existence; in changing the balance of psychological equilibrium and stability. Intimidation of the population means creating social destabilization and an atmosphere of public anxiety in which fear becomes the dominant psychological state, citizens become uncertain about the safety of their lives and health and those of their relatives, the protection of their rights and freedoms, and lose faith in the effective operation of law enforcement agencies.

Influencing decision-making by state bodies of the Republic of Kazakhstan, a foreign state or an international organization means inducing the relevant entities to take actions or refrain from taking actions that are necessary for terrorists, including the adoption by government authorities of unlawful decisions under the pretext of ensuring the safety of citizens and society.

Provocation of war (from Latin provocatio — challenge) means incitement to aggressive actions with the purpose of causing an armed conflict.

Complication of international relations means a conflict situation between states and systems of states, the principal social, economic and political forces, organizations and social movements operating on the world stage in the sphere of economic, political, ideological, legal, diplomatic and other relations and interactions.

The objective element of an act of terrorism is largely identical to sabotage (Article 184 of the Criminal Code); the difference lies in the purposes of the crimes. Both crimes are committed with direct intent, but in the case of sabotage, the intent is directed at the mass destruction of people, causing harm to their health, or destroying or damaging enterprises, structures, transport routes and means of communication, communication facilities and public life-support facilities.

When considering cases involving acts of terrorism, it is always necessary to establish whether the offender had the special purpose that constitutes part of the subjective element of the crime. At the same time, for an act to be recognized as an act of terrorism, it is sufficient for the offender to have one of the listed special purposes.

If none of the purposes for committing the acts is established, the perpetrators shall be held liable under other relevant Articles of the Criminal Code.

The subject of terrorism is a physically competent and sane individual who has reached the age of 14.

Part 2 of Article 255 of the Criminal Code provides for criminal liability for a qualified act of terrorism:

• repeated commission;
• use of weapons or objects used as weapons, explosives or explosive devices capable of creating a real threat to the life and health of citizens.

Repeated commission means the commission by a person of two or more acts of terrorism, provided that the person has not been convicted in accordance with the procedure established by law or released from criminal liability for the previous act of terrorism, and that the limitation periods for bringing criminal liability for terrorism have not expired.

Where, in one case, an act of terrorism has been completed and, in another, an attempt to commit an act of terrorism has occurred, or where, in committing one criminal offence, the offender acted as the perpetrator, while in committing other offences they acted as an organizer, instigator or accomplice, the actions of the offender must be classified in accordance with paragraph 2 of Clause 14 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated December 25, 2006, “On the Classification of Repeated and Multiple Criminal Offences”: in such cases, when classifying the actions of a person who participated in the commission of a criminal offence as an organizer, instigator or accomplice, Article 28 of the Criminal Code and the relevant Article of the Special Part of the Criminal Code providing for liability for the committed criminal offence must be applied, while the same person's act in which they acted as the perpetrator must be classified independently under the relevant Article of the Criminal Code.

The use of weapons means the use, for their intended purpose, of any weapons in the commission of terrorism, with the exception of weapons provided for in subparagraph 1) of Part 3 of Article 255 of the Criminal Code. The qualifying circumstance of weapon use is not established where a weapon is used for the purpose of avoiding detention after the commission of an act of terrorism.

Weapons should be understood as devices and objects structurally designed to strike a living or other target, as well as to give signals, in accordance with the Law of the Republic of Kazakhstan dated December 30, 1998, “On State Control over the Circulation of Certain Types of Weapons”, and recognized as weapons by an expert opinion. The Law classifies the following as types of weapons: firearms, bladed weapons, gas weapons, electric weapons and pneumatic weapons.

Objects used as weapons may include any objects used by a person to kill, cause bodily injury or intimidate the population. Paragraph 3 of Clause 21 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated July 11, 2003, “On Judicial Practice in Cases of Embezzlement”, states:

“Objects that may cause bodily injury dangerous to life or health are recognized as objects used as weapons (household knives, razors, axes, screwdrivers, adapted objects such as clubs, etc.).

The use of weapons or objects used as weapons shall mean their actual use for the purpose of causing harm to the life or health of the victim (firing a shot, inflicting stabbing or cutting blows, etc.), that is, using the ability of the weapon or object to strike a living target” (paragraph 4 of Clause 21 of the Regulatory Resolution of the Supreme Court).

Explosives shall mean chemical compounds or mechanical mixtures of substances capable of rapid self-propagating chemical transformation and explosion without access to oxygen (air) (for example, TNT, nitroglycerin, pyroxylin, ammonite, plastic explosives, elastite, gunpowder, solid rocket fuel and other chemical substances and mixtures possessing the ability to undergo explosive reactions, the acquisition and possession of which require a special permit).

Explosive devices shall mean industrially manufactured or homemade products and objects (mechanisms) that functionally combine an explosive substance and are structurally designed to produce an explosion (a primer, detonator, fuse, etc.).

According to paragraph 4 of Clause 11 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan “On Certain Issues of Judicial Practice in the Application of Legislation on Terrorist and Extremist Crimes”, explosives are chemical substances and their mixtures capable of explosive reactions. Explosives should be understood to include gunpowder, TNT, nitroglycerin, pyroxylin, ammonal and other chemical substances and their mixtures capable of explosive reactions. Explosive devices should be recognized as objects structurally designed to produce an explosion. Weapons, explosives or explosive devices may be either factory-produced or homemade.

If, in the course of committing an act of terrorism, illegally acquired, possessed or manufactured firearms, ammunition, explosives or explosive devices were used, the actions of the person shall be classified cumulatively under Articles 255, 287 and 288 of the Criminal Code.

At the same time, mere possession of weapons or objects used as weapons, explosives or explosive devices is insufficient; it is necessary that these objects were actually used and that their use created a real threat to the life and health of citizens.

Part 3 of Article 255 of the Criminal Code establishes criminal liability for the acts provided for in Parts 1 or 2 of this Article if they:

• are associated with the use or threat of use of weapons of mass destruction, radioactive materials, and the commission or threat of commission of mass poisonings, the spread of epidemics or epizootics, as well as other actions capable of causing mass loss of life;
• have negligently resulted in the death of a person or other grave consequences.

The public danger of the crime provided for in subparagraph 1) of Part 3 of Article 255 of the Criminal Code lies in the fact that the commission of an act of terrorism involving the use or threat of use of weapons of mass destruction, radioactive materials, and the commission or threat of commission of mass poisonings, the spread of epidemics and epizootics, as well as other actions capable of causing mass loss of life, creates a threat of mass loss of human life, destruction of public life-support facilities, contamination or destruction of animal and plant life, and may also lead to other harmful consequences for society and the natural environment.

In accordance with subparagraph 2) of Article 1 of the Law of the Republic of Kazakhstan dated July 21, 2007, “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, paragraph 1 of Article 2 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 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, “On the Use of Atomic Energy”, radioactive substances are any materials of natural or man-made origin in any state of aggregation containing radionuclides. In accordance with Part 1 of Article 1 of the International Convention for the Suppression of Acts of Nuclear Terrorism (New York, September 14, 2005), ratified by Law of the Republic of Kazakhstan dated May 14, 2008, No. 33-4, the term “radioactive material” means nuclear material and other radioactive substances containing nuclides that decay spontaneously (a process accompanied by the emission of one or more types of ionizing radiation, such as alpha radiation, beta radiation, neutron radiation and gamma radiation) and which, by virtue of their radiological properties or properties of their fission, may cause death, serious bodily injury or substantial damage to property or the environment.

If illegally acquired or possessed radioactive substances were used during the commission of an act of terrorism, the actions of the person shall be classified cumulatively under Articles 255 and 283 of the Criminal Code.

The use of weapons of mass destruction and radioactive materials means their direct use for the indiscriminate destruction of an indefinite number of persons.

A threat to use weapons of mass destruction or radioactive materials means intimidating citizens, representatives of state bodies of the Republic of Kazakhstan, foreign states or international organizations with their immediate use for their intended purpose.

Mass poisoning means the disruption of the normal metabolic process in the bodies of a large number of people. Poisoning of the body may be achieved through the consumption of contaminated drinking water or food, as well as through the use of various gases.

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 subparagraph 45) of Article 1 of the Law of the Republic of Kazakhstan dated July 10, 2002, “On Veterinary Medicine”, respectively.

The spread of epidemics means the infection of a large number of people with various diseases. Diseases acquire the character of an epidemic following the mass infection of people over an extensive territory within a short period of time.

An epizootic is the widespread occurrence of particularly dangerous and other infectious animal diseases within the territory of the relevant administrative-territorial unit.

Other actions shall mean actions capable of causing mass loss of human life. The existence of the element of mass scale is mandatory.

Causing death to a person means the occurrence of the biological death of an individual as a result of the commission of an act of terrorism.

Other grave consequences in the context of terrorism mean causing grievous bodily injury to several persons or moderate bodily injury to many persons, as well as causing substantial material damage.

Where an act of terrorism has negligently resulted in the death of one person (or two or more persons), such actions are covered by subparagraph 2) of Part 3 of Article 255 of the Criminal Code and do not require additional classification under Articles 99 and 104 of the Criminal Code.

Intentional causing of death to a person (or two or more persons) shall be classified under Part 4 of Article 255 of the Criminal Code.

The subjective element of the crime provided for in subparagraph 2) of Part 3 of Article 255 of the Criminal Code differs from the other paragraphs and parts of this provision in that it is characterized by two forms of guilt. With regard to the act (the act of terrorism), guilt is characterized by intent, while with regard to the consequences that have occurred (death or other grave consequences), it is characterized by negligence in the form of recklessness or carelessness. However, overall, in accordance with Article 22 of the Criminal Code of the Republic of Kazakhstan, such a crime is recognized as intentional.

The objective element of Part 4 of Article 255 of the Criminal Code is constituted by an encroachment upon a person's life committed for the purpose of disrupting public security; intimidating the population; influencing decision-making by state bodies of the Republic of Kazakhstan, a foreign state or an international organization; provoking war or complicating international relations; as well as an encroachment upon the life of a state or public figure committed for the same purposes, and also for the purpose of terminating their state or other political activities or out of revenge for such activities; or an encroachment upon a person's life associated with an attack on persons or organizations enjoying international protection, buildings or structures, the taking of hostages, buildings, structures, means of communication and communications facilities, hijacking, as well as the seizure of an aircraft or watercraft, railway rolling stock or other public transport.

The provision under consideration establishes liability for:

• an encroachment upon a person's life committed for the purpose of disrupting public security, intimidating the population, influencing decision-making by state bodies of the Republic of Kazakhstan, a foreign state or an international organization, provoking war or complicating international relations;
• an encroachment upon the life of a state or public figure committed for the purpose of disrupting public security, intimidating the population, influencing decision-making by state bodies of the Republic of Kazakhstan, a foreign state or an international organization, provoking war or complicating international relations, as well as for the purpose of terminating their state or other political activities or out of revenge for such activities;
• an encroachment upon a person's life associated with an attack on persons or organizations enjoying international protection, buildings or structures, the taking of hostages, buildings, structures, means of communication and communications facilities, hijacking, as well as the seizure of an aircraft or watercraft, railway rolling stock or other public transport.

Unlike Parts 1, 2 and 3 of Article 255 of the Criminal Code, which provide for liability for committing an explosion, arson or other actions creating a danger of loss of human life, causing significant property damage or the occurrence of other socially dangerous consequences, Part 4 of Article 255 of the Criminal Code provides for liability for an encroachment upon the life of specific persons (as specified therein).

Part 4 of the Article under consideration covers all actions specified therein as qualifying circumstances; therefore, additional classification under Articles 261 “Taking of Hostages”, 270 “Hijacking or Seizure of an Aircraft or Watercraft or Railway Rolling Stock”, and 200 “Unlawful Taking of a Vehicle or Other Means of Transport Without the Purpose of Theft” is not required.

This crime differs from the murder of a person or their close relatives in connection with that person's performance of official duties or fulfilment of a professional or public obligation (subparagraph 2) of Part 2 of Article 99 of the Criminal Code) in terms of its object and purpose; from an encroachment upon the life of the President of the Republic of Kazakhstan (Article 178) — in terms of its object and the position held by the victim; from an encroachment upon the life of an employee of a law enforcement body, a special state body, a serviceman, a state inspector for the protection of wildlife, an inspector of a specialized wildlife protection organization or a gamekeeper (Article 380-1 of the Criminal Code) — in terms of its object and the position held by the victim; and from an encroachment upon the life of a person administering justice or conducting a pre-trial investigation (Article 408 of the Criminal Code) — in terms of its object and the position held by the victim. This crime differs from murder in that the object of murder is human life, whereas the object of the crime provided for in Part 4 of Article 255 of the Criminal Code is public security, with human life serving as an additional object in this case. Murder is the unlawful intentional causing of death to another person, whereas an encroachment upon life includes not only the unlawful intentional causing of death to another person but also an attempted murder. Murder is considered completed from the moment biological death occurs, whereas an encroachment upon life is considered completed from the moment of the attempted murder, regardless of whether consequences have occurred.

The provision under consideration competes with Articles 178, 380-1 and 408 of the Criminal Code. In relation to this provision, in such cases, pursuant to Part 3 of Article 13 of the Criminal Code, the special provision shall apply, namely Articles 178, 380-1 or 408 of the Criminal Code.

An encroachment upon life means the intentional unlawful causing of death (murder) or an attempted murder, i.e. intentional actions directly aimed at causing death.

By its legal construction, the elements of the crime provided for in Part 4 of Article 255 of the Criminal Code of the Republic of Kazakhstan are formal. The crime shall be considered completed from the moment of the encroachment, regardless of the consequences.

A state figure is the head of state, the heads of state executive and legislative authorities, as well as senior officials of the state apparatus and other high-ranking public servants. Consequently, state figures include representatives of the Presidential Administration, members of the Government, ministers and their deputies, etc.

Public figures include the heads or prominent members of public associations and political parties. The methods and means of encroaching upon the life of a state or public figure may vary and do not affect the legal classification of the crime.

The decisive factor is not the position held but the political authority of the victim. Liability for an encroachment upon the life of a state or public figure arises regardless of when the actions that served as the reason for committing the crime were performed. It is not required that the encroachment take place specifically at the moment when the victim is carrying out state or other political activities.

When classifying an act under Part 4 of Article 255 of the Criminal Code, it is necessary to establish which lawful actions of the victim, associated with the performance of their state or other political activities, prompted the offender to commit the murder, since an essential condition for such classification is the offender's intent to encroach upon the life of that particular person specifically in connection with these circumstances.

An attack is an action directly aimed at achieving a criminal result by applying violence against the victim or creating a real threat of its immediate use.

Categories of persons enjoying international protection:

• heads of states, official representatives and officials of states staying in the territory of a foreign state;
• personnel of diplomatic missions;
• personnel of international organizations;
• consular personnel;
• family members residing together with the aforementioned persons.

An attack on buildings or structures should be understood as the unlawful entry of the offender into such places followed by the commission of certain actions. An attack presupposes entry into such premises, their blockade, shelling, etc.; this type of attack may be carried out without the use of physical or psychological violence.

Seizure means the unlawful taking of possession of a building, structure, means of transport or communications facility.

Taking of a hostage means taking possession of a person followed by restricting their freedom of movement.

Hijacking of an aircraft or watercraft, railway rolling stock or other public transport means unlawful taking of possession of the aircraft, vessel or rolling stock while it is stationary.

Seizure of an aircraft or watercraft, railway rolling stock or other public transport means unlawful taking of possession of the aircraft, vessel or rolling stock while it is travelling along its route.

The subjective element of the crime provided for in Part 4 of Article 255 of the Criminal Code is characterized by direct intent and a special purpose or special motive.

The purpose of committing the crime under consideration — disrupting public security, intimidating the population, influencing decision-making by state bodies of the Republic of Kazakhstan, a foreign state or an international organization, provoking war or complicating international relations, as well as encroaching upon the life of a state or public figure for the same purposes, and also for the purpose of terminating their state or other political activities or out of revenge for such activities — has mandatory criminal-law significance for classifying an act under Part 4 of Article 255 of the Criminal Code of the Republic of Kazakhstan.

Termination of state activities means the cessation of activities involving the performance of official powers aimed at implementing the tasks and functions of state authority.

Politics is a particular type of activity associated with the participation of social groups, political parties, movements and individuals in the affairs of society and the State.

Political activity encompasses several spheres: public administration, the influence of political parties and movements on the course of social processes, the adoption of political decisions and political participation.

Termination of political activity means the cessation of activities in the sphere of political and power relations.

An encroachment upon a person's life by means of an explosion, arson or other generally dangerous methods, where the special purposes characteristic of an act of terrorism are absent, should not be classified as terrorism but as murder of a specific person committed by a method dangerous to the lives of many people, that is, under subparagraph 6) of Part 2 of Article 99 of the Criminal Code.

In this case, if a person encroaches upon the life of a state or public figure, or an employee of a law enforcement body, a special state body, a serviceman, a state inspector for the protection of wildlife, an inspector of a specialized wildlife protection organization or a gamekeeper, or a person administering justice or conducting a pre-trial investigation, by committing an explosion, arson or other actions of a similar nature for the purpose of influencing decision-making by state bodies of the Republic of Kazakhstan, a foreign state or international organizations, the act shall be classified under Article 255 of the Criminal Code.

Where an encroachment upon the life of an employee of a law enforcement body, a special state body, a serviceman, a state inspector for the protection of wildlife, an inspector of a specialized wildlife protection organization or a gamekeeper, or a person administering justice or conducting a pre-trial investigation, is committed by the aforementioned method but without the special purpose characteristic of terrorism, the actions of the offender shall be classified under Articles 380-1 and 408 of the Criminal Code.

The motive for committing the act of terrorism also has mandatory criminal-law significance. This crime may be committed out of revenge for the state or other political activities of the victim, provided that the purpose of the criminal actions is specifically to terminate such activities.

The motive of revenge for the state or other political activities of the victim consists of the desire to express dissatisfaction with those activities by physically eliminating the state or public figure.

The Note to Article 255 of the Criminal Code establishes grounds for exemption from criminal liability in cases of terrorism. Such grounds include timely warning of state authorities about an act of terrorism or providing other assistance (by other means) in preventing the act of terrorism. At the same time, the actions of the offender must not contain the elements of another crime.

The timeliness of the warning is determined by whether the report concerning the planned terrorist act was made sufficiently in advance and whether the authorities had a real opportunity to take preventive measures before the act of terrorism began.

The form and method of giving the warning have no legal significance. It may be made in writing or orally, by telephone, through third parties, etc. However, in this respect, it is important that the offender must be confident that the message will reach its intended recipient.

Another method of preventing terrorism may consist of the person's independent actions to prevent an explosion or arson, involving other citizens in containing harmful consequences, persuading accomplices to abandon their terrorist intentions, warning residents of an impending act of terrorism while indicating the place where it is to be committed, etc.

If a person participated in the preparation or commission of several acts of terrorism, they shall be exempt from criminal liability only for those acts whose commission they prevented.

The acts provided for in Parts 1 and 2 of Article 255 of the Criminal Code are classified as serious crimes.

The acts provided for in Parts 3 and 4 of Article 255 of the Criminal Code are classified as particularly serious crimes.

Commentary of 2021 to the Criminal Code of the Republic of Kazakhstan by Isidor Shamilovich Borchashvili, Honoured Figure of Kazakhstan, Doctor of Law, Professor, Academician of the National Academy of Natural Sciences of Kazakhstan, member of the Scientific Advisory Councils under the Constitutional Council of the Republic of Kazakhstan and the Supreme Court of the Republic of Kazakhstan, member of the working group on reform of the law enforcement system under the Security Council of the Republic of Kazakhstan, Honoured Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.

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