Commentary on Article 115. Threat of the Criminal Code of the Republic of Kazakhstan
Threatening to kill or cause grievous bodily harm, as well as to inflict other serious violence against a person, or to destroy property by arson, explosion or any other generally dangerous method, where there are sufficient grounds to fear that the threat will be carried out, shall be punishable by a fine in an amount of up to one hundred and twenty monthly calculation indices, or by correctional labour in the same amount, or by engagement in community service for a period of up to one hundred and twenty hours, or by arrest for a period of up to thirty days.
The public danger of the criminal misdemeanour under consideration lies in the fact that, as law enforcement practice demonstrates, the guilty person frequently subsequently carries out the threat. In this regard, establishing criminal liability for making threats makes it possible, to a certain extent, to ensure the safety of citizens and prevent serious crimes.
The object of the criminal misdemeanour is life and health, since these are precisely the values that are endangered and threatened with harm as a result of this criminal infringement.
The objective element is expressed in threatening to kill or cause grievous bodily harm, as well as to inflict other serious violence against a person, or to destroy property by arson, explosion or any other generally dangerous method, where there are sufficient grounds to fear that the threat will be carried out.
A threat is the intimidation of a person through psychological influence. The methods of expressing threats may vary: orally or in writing, addressed directly to the victim or conveyed through third parties, or through the victim's relatives; by using a telephone, telegraph or fax. It is important that the threat be addressed to a specific person. Threats directed at an indefinite group of persons are not covered by Article 115 of the Criminal Code, but under certain circumstances may constitute the elements of another crime (for example, one provided for in Article 174 of the Criminal Code).
A threat may be directed towards the future or may be of an immediate nature. An essential element of this offence is the reality of the threat, i.e. the existence of sufficient grounds to fear that the threat will be carried out. This means that the victim perceives the threat not as an empty or joking statement, but as a genuine intention to carry it out. The reality of a threat may be evidenced by a number of factors: the specific situation, circumstances, place, time, the characteristics of the perpetrator, their pattern of behaviour, previous criminal convictions and other factors. Thus, a threat may be recognised as real when it is accompanied by the search for appropriate means to carry it out, or by statements made during a serious conflict rather than during an incidental dispute or quarrel.
The victim's subjective perception of the threat must be based on objective grounds for fearing its execution. At the same time, it does not matter whether the perpetrator actually intended to carry out the threat in the future; it is sufficient that the presumed victim considered it to be a genuine threat.
The reality of a threat is established in each particular case, taking into account all the factual circumstances of the case. Where the perpetrator has made threats of violence that were of an indefinite nature, the question of whether the person's actions constitute the criminal misdemeanour provided for in Article 115 of the Criminal Code must be resolved taking into account all the circumstances of the case: the place and time of the criminal offence, the nature of the objects with which the victim was threatened, the subjective perception of the threat, the performance of any specific demonstrative actions, and so forth.
If a threat is made to cause moderate bodily harm, and even more so minor bodily harm, which has been excluded from the Criminal Code, or to disseminate defamatory information, liability under Article 115 of the Criminal Code is excluded, since the content of the threat in this case is different. Criminal liability for such types of threats may arise only where the threat served as a means of committing another criminal offence (for example, one provided for in Articles 116, 123, 125 and 194 of the Criminal Code).
If the specific degree of violence (harm to health) cannot be established and was not clearly contemplated either by the victim or by the person making the threat, it should be regarded as a threat of violence that is not dangerous to the person's life or health.
A threat may be made once or repeatedly. Repeated threats to kill or cause grievous bodily harm, as well as to inflict other serious violence against a person, or to destroy property by arson, explosion or any other generally dangerous method, addressed to one person or made pursuant to a single intent, do not collectively constitute multiple criminal misdemeanours and are classified as a single continuing criminal offence. If a threat is addressed to two or more persons, the conduct is classified as one criminal offence, provided that such threat expresses a single intention on the part of the subject of the criminal offence; otherwise, the conduct is assessed in accordance with the rules governing the classification of the actual concurrence of criminal offences.
Threatening to kill or cause grievous bodily harm constitutes psychological violence. This act differs from an attempt to commit murder or cause grievous bodily harm in that the perpetrator does not have the purpose of taking the victim's life or causing them grievous bodily harm and does not perform any actions aimed at actually carrying out the threat.
Where a threat is made to destroy property by arson, explosion or any other generally dangerous method, the object is the victim's property.
By its legal construction, the elements of the criminal misdemeanour are formal, and the offence is considered completed from the moment the threat is expressed.
The subjective element is characterised by guilt in the form of direct intent. The perpetrator is aware that their actions constitute an expression of a threat and wishes to perform those actions.
A threat can only be committed with direct intent.
An act committed with indirect intent or through negligence cannot constitute the offence of making a threat.
The motives for this criminal misdemeanour are varied and do not affect its legal classification.
For the correct criminal-law assessment of the article under consideration, it is important to establish the purpose of the threat, since certain threats, by changing the content of the guilt, may indicate the presence of another criminal offence (for example, threatening to kill for the purpose of breaking the resistance of a rape victim). Article 115 of the Criminal Code applies to threats that do not constitute an element of the objective side of another, more serious crime (for example, robbery, etc.).
Threatening to destroy property by arson, explosion or any other generally dangerous method bears similarities to an act of terrorism (Article 255 of the Criminal Code), which may be carried out by means of an explosion, arson or other actions creating a danger of loss of life, significant property damage or other socially dangerous consequences. The difference is that an essential element of an act of terrorism is its purpose: disrupting public safety, intimidating the population, influencing the decision-making of state bodies of the Republic of Kazakhstan, a foreign state or an international organisation, provoking war or complicating international relations. The article under consideration should be applied where a threat to destroy property by arson, explosion or any other generally dangerous method is made without the aforementioned purpose.
The subject is a sane natural person who has reached the age of sixteen. If the perpetrator, without limiting themselves to making a threat, also performs other actions aimed at creating conditions for committing murder or causing such bodily harm, or actions directly aimed at committing these acts, liability arises for preparation for crimes or attempted crimes provided for in the relevant part of Article 99 or Article 106 of the Criminal Code. A threat to kill or cause grievous bodily harm may constitute an element of the objective side of another violent crime (Article 192). In such a case, it does not require separate additional classification.
The Special Part of the Criminal Code contains a number of articles providing for increased liability for threats made against certain categories of persons in connection with their socially beneficial activities. Such special offences include, for example, Articles 380, 380-2 and 409, as well as Part 4 of Article 429 of the Criminal Code. In this case, the perpetrator infringes not only upon the victim's person but also upon another protected interest which, from the legislator's perspective, is the principal object, in particular, the established procedure of public administration and the administration of justice. In such situations, Article 115 of the Criminal Code serves as the general provision.
In accordance with Part 3 of Article 13 of the Criminal Code, where one and the same act falls within the elements of both a general and a special provision of the relevant articles of the Criminal Code, there is no concurrence of criminal offences, and criminal liability arises under the article of the Special Part of the Criminal Code containing the special provision. Thus, the resulting competition of provisions must be resolved in favour of the special types of threats, and Article 115 of the Criminal Code shall not apply.
In concluding the examination of Article 115 of the Criminal Code, I would like to note the following: in my opinion, the legislator has unjustifiably classified this act as a criminal misdemeanour (as the legislator often does). There is no need to prove that the legislator's decision on this matter was not based on scientifically substantiated factors of criminalisation (decriminalisation) and penalisation (depenalisation). In specialised studies devoted to liability for threats, both domestic and foreign authors point out that such threats account for a significant percentage of violent crimes committed. How can the legislative definition of a criminal misdemeanour contained in Part 3 of Article 10 of the Criminal Code be reconciled with an act involving a threat to “kill or cause grievous bodily harm, as well as to inflict other serious violence against a person, or to destroy property by arson, explosion or any other generally dangerous method”?
The act provided for in Article 115 of the Criminal Code is classified as a criminal misdemeanour.
Commentary of 2021 on 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 the 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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