Commentary on Article 173. Attack on Persons or Organizations Enjoying International Protection of the Criminal Code of the Republic of Kazakhstan

1. An attack on a representative of a foreign state or an employee of an international organization enjoying international protection, or members of their families residing with them, as well as on the official or residential premises or vehicles of persons enjoying international protection, as well as the abduction or forcible deprivation of liberty of such persons, and also the threat to commit the aforementioned acts —

shall be punishable by imprisonment for a term of three to eight years.

2. The same acts, if committed repeatedly, or with the use of weapons or objects used as weapons, or by a group of persons acting in prior conspiracy, or involving the infliction of grievous bodily harm, as well as if committed with the aim of provoking war or complicating international relations, —

shall be punishable by imprisonment for a term of ten to fifteen years, with or without confiscation of property.

3. Acts provided for in Parts One or Two of this Article, resulting in the death of a person through negligence or committed by a criminal group, —

shall be punishable by imprisonment for a term of fifteen to twenty years, with or without confiscation of property.

The legal basis for including this provision in the Criminal Code of the Republic of Kazakhstan was the Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents, concluded on December 14, 1973, in New York, and ratified by Decree of the President of the Republic of Kazakhstan dated January 23, 1996.

Under customary and treaty law, the receiving State is obliged to take all necessary measures to prevent violations of diplomatic privileges and immunities. Due to the increasing frequency of such violations, the United Nations General Assembly adopted, by Resolution 3166 (XXVIII) of December 14, 1973, the Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents (which entered into force in the USSR on February 20, 1977). The classification of this crime as an independent offence is обусловлено the special status of diplomats and other persons enjoying international protection. It is most often committed by various extremist groups seeking to exert pressure on a government, for example, with the aim of securing the release of prisoners, exchanging diplomats for a particular arrested person, etc.

“Persons enjoying international protection” is a collective term denoting the victims, while the right to protection of such persons is a direct consequence of the principle of international law concerning their personal inviolability. According to Article 1 of the Convention, such persons include:

the Head of State, including each member of a collegial body performing the functions of the Head of State in accordance with the constitution of the relevant State, or the Head of Government, or the Minister for Foreign Affairs while in a foreign State, as well as persons accompanying them;

any representative or official of a State, or any official or other agent of an intergovernmental international organization who, under international law, is entitled to special protection against any attack on their person, freedom and dignity;

family members of the persons referred to in subparagraph “b” who reside with them (paragraph 1).

Consequently, the right to international protection is enjoyed by Heads of State, representatives and officials of States who are present in a foreign State (the receiving State). This right is absolute and extends throughout the entire period of their stay.

The special — “immunity-based” — status of persons protected under international law belongs to the personnel of diplomatic missions: diplomatic agents, administrative and technical staff, service staff and diplomatic couriers.

To establish the categories of persons entitled to international protection, the following instruments shall be used as guidance:

the Convention on the Privileges and Immunities of the United Nations of February 13, 1946;

the Vienna Convention on Diplomatic Relations of April 18, 1961;

the Vienna Convention on Consular Relations of April 24, 1963;

the Convention on Special Missions of December 8, 1969;

the Convention on the Privileges and Immunities of the Specialized Agencies of November 21, 1947;

the Convention on the Safety of United Nations and Associated Personnel of December 9, 1994, and others.

The public danger of this crime lies in the fact that crimes against persons enjoying international protection pose a serious threat to the maintenance of normal international relations, which are essential for cooperation between States.

The object of the crime is the public relations ensuring the security of personnel of international organizations, official representatives of foreign States and international institutions. In the event of an attack on persons enjoying international protection, additional objects may include the health, inviolability, honour and dignity of such persons.

The mandatory elements of this crime are the subject matter of the crime and the special category of victims. The subject matter of the criminal encroachment is the movable and immovable property of persons enjoying international protection, as well as the movable and immovable property of a State possessing a special status; the victim is a person enjoying international protection.

According to the Vienna Convention on Diplomatic Relations of April 18, 1961, the premises, assets, official correspondence, diplomatic mail and archives of a diplomatic mission, as well as the private residence of a diplomatic agent, are inviolable, as are their papers and correspondence; their employees enjoy freedom of movement throughout the receiving State. Under the Vienna Convention on Consular Relations of April 24, 1963, the part of the consular premises used exclusively for the work of the consular post may be entered by the authorities of the receiving State only with the consent of the consul (except in cases of fire or other natural disasters); the premises of the consulate, its furnishings and means of transport enjoy immunity from requisition for public and military needs. However, consular archives are inviolable at all times, wherever they may be located. The premises, property, means of transport, private residence of the Head of Mission, archives and correspondence of international organizations of a universal character are inviolable.

The following categories of persons enjoying international protection may be identified (excluding citizens of the receiving State and persons permanently residing in that State):

Heads of State, 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 with the aforementioned persons.

The Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents, of December 14, 1973, classifies the following as crimes against such persons:

murder, kidnapping or other attacks on the person or liberty of an internationally protected person;

a violent attack upon the official premises or means of transport of an internationally protected person, which is likely to endanger their person or liberty;

the threat of such an attack;

attempts to commit any such attack;

acts of participation as an accomplice in any such attack.

The guilty person shall be convicted under national criminal law or extradited to the interested State or intergovernmental international organization of which the victim enjoying international protection is an agent or any official, in accordance with the universally recognized international principle of “extradite or prosecute” (“aut dedere aut judicare”).

The objective element of the crime under consideration includes the following socially dangerous acts:

an attack on a representative of a foreign State or an employee of an international organization enjoying international protection, or members of their families residing with them;

an attack on the official or residential premises or means of transport of the aforementioned persons;

the abduction or forcible deprivation of liberty of such persons;

the threat to commit the aforementioned acts.

Compared with the previously applicable Criminal Code of July 16, 1997, the point at which the crime provided for in Part 1 of Article 173 of the Criminal Code is deemed completed has been moved to the attempt stage (from the moment the threat to commit the aforementioned acts is expressed). The special purpose — provoking war or complicating international relations — is now provided for as an aggravating element of the offence. The Article has been supplemented with an especially aggravated offence under Part 3 of Article 173 of the Criminal Code.

An attack is an act directly aimed at achieving a criminal result through the use of violence against the victim or the creation of a real threat of its immediate use. An attack on the official or residential premises of a person enjoying international protection should be understood as the unlawful entry of the offender into such premises, followed by the commission of certain actions. An attack on the means of transport of such a person means unlawful entry into it, taking possession of it, or carrying out any actions in relation to the vehicle that prevent its use for its intended purpose.

The crime includes three types of alternative acts against the victim: violent acts, kidnapping or deprivation of liberty.

An attack on premises and means of transport includes, among other things, entering them, blocking them, firing upon them, etc. At the same time, this type of attack may be carried out without the use of physical or psychological violence. Damage to or destruction of property, as well as violation of the inviolability of the home in the course of an attack on premises and transport, are covered by the objective element of this crime and do not require additional legal classification.

Kidnapping a person enjoying international protection should be understood as unlawful intentional acts involving the secret or open seizure of such a person, or seizure by deception, their removal from the place where they are located (place of residence, work or medical treatment), and transportation to another place, followed by detention against their will.

Forcible deprivation of liberty consists of restricting the personal freedom (freedom of movement) of a person enjoying international protection. As a rule, the person is forcibly detained in some premises by being placed there or tied up.

Unlawful deprivation of liberty differs from kidnapping in the method of its commission. In kidnapping, the seizure of the person precedes the restriction of liberty, whereas in unlawful deprivation of liberty there is no seizure or removal from the place where the person is located.

A threat is the intimidation of a person through psychological influence. Threats may be expressed in various ways: orally or in writing, addressed directly to the victim or conveyed through third parties or through their relatives; by means of telephone, telegraph or fax.

A threat may be directed towards the future or be immediate in nature. It is necessary, however, that the victim have real grounds to fear its implementation. The reality of a threat is determined by taking into account all the circumstances of the case: the time and place of the incident, the nature and form in which the threat was expressed, including whether or not the offender possessed a weapon; the number of participants in the incident; circumstances characterizing the offender’s personality, their prior conduct, etc. Thus, a threat may be recognized as real when it is accompanied by the procurement of appropriate means for carrying it out. At the same time, it is irrelevant whether the offender actually intended to carry out the threat in the future; it is sufficient that the presumed victim considered the threat capable of being carried out.

By its legal structure, the offence is formal. The crime shall be considered completed from the moment the offender expresses the threat.

The subjective element is characterized by direct intent. The offender is aware that they are committing violent acts, kidnapping or deprivation of liberty specifically against a representative of a foreign State or an international organization, or attacking specifically the official or residential premises of institutions enjoying international protection, or the means of transport of such institutions, and desires to do so. The motives and purposes of the criminal conduct may vary.

The subject of the crime is a sane natural person who has reached the age of 14.

Part 2 of Article 173 of the Criminal Code provides for liability for the same acts committed repeatedly, or with the use of weapons or objects used as weapons, or by a group of persons acting in prior conspiracy, or involving the infliction of grievous bodily harm on the victim, as well as acts committed with the aim of provoking war or complicating international relations.

Repeated commission means the commission of two or more acts provided for by the Article under consideration or its relevant part. In this case, the person must not have been convicted of any of the acts committed or released from criminal liability on grounds established by law.

The commission of the crime under consideration with the use of weapons or objects used as weapons presupposes the actual use of any firearm, bladed weapon or gas weapon (a real weapon, rather than a replica or defective weapon), as well as objects used as weapons, 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, the use of the weapon’s or object’s capacity to affect a living target.

In this regard, under subparagraph 5) of Article 1 of the Law of the Republic of Kazakhstan dated December 30, 1998, “On State Control over the Circulation of Certain Types of Weapons”, a weapon shall mean devices and objects structurally designed to strike a living or other target, as well as to give signals.

A crime shall be deemed to have been committed by a group of persons acting in prior conspiracy if persons who had agreed in advance to commit the crime jointly participated in it. In order to qualify the actions of the perpetrators under this criterion, it is necessary to establish whether there was an agreement, expressed in any form, between two or more persons to commit the crime, and whether these persons reached such an agreement before the commencement of actions directly aimed at committing the crime, that is, before at least one perpetrator began carrying out the objective element of the offence.

The crime is also classified as having been committed by a group of persons acting in prior conspiracy in cases where the joint efforts of two or more persons were combined to commit it, and the actions of each accomplice were a necessary condition for the actions of the other accomplices, in accordance with the prior distribution of roles, and were causally connected with the common criminal result arising from the activities of all accomplices. In such cases, the participation of two or more direct perpetrators in the crime is not mandatory; the presence of one direct perpetrator, provided that other types of accomplices are involved, is sufficient.

At the same time, a person who was not part of the prior conspiracy with the other accomplices to the crime, but joined them during its commission by other persons and directly participated in it, shall be held liable as a co-perpetrator for the specific actions actually committed by that person.

Grievous bodily harm is harm to human health that is dangerous to life, or other harm to health resulting in: loss of sight, speech, hearing or any organ; loss of function by an organ; permanent disfigurement of the face; a health disorder associated with a significant permanent loss of general working capacity of at least one-third; complete loss of professional working capacity; termination of pregnancy; mental disorder; drug addiction or toxicomania (subparagraph 11) of Article 3 of the Criminal Code).

Provocation of war should be understood as an attempt to initiate an armed confrontation between States or interstate unions as subjects of international law. In this regard, the legal fact of a formal declaration of war is irrelevant. Provocation of an internal armed conflict is not covered by this provision.

Complication of international relations may manifest itself in various forms: a) initiating the severance of diplomatic relations; b) putting forward territorial and other political claims; c) disrupting international negotiations; d) curtailing trade, economic or other interstate cooperation; e) suspending participation in the activities of a universal international organization, etc. If the offender thereby succeeds in provoking a war of aggression, their actions shall be classified cumulatively under Articles 173 and 161 of the Criminal Code.

Part 3 of Article 173 of the Criminal Code establishes liability for acts provided for in Parts 1 or 2 of this Article that result in the death of a person through negligence or are committed by a criminal group.

Causing the death of another person through negligence means causing death by recklessness, where the offender foresees the possibility of another person's death as a result of their actions but, without sufficient grounds, carelessly relies on preventing such consequences; or by negligence, where the offender does not foresee the possibility of another person's death as a result of their actions, although, with due care and foresight, they should and could have foreseen these consequences.

The subjective element in this case is characterized by a dual form of guilt: direct intent in relation to the acts themselves (the attack on persons or organizations) and negligence in the form of recklessness or carelessness in relation to the death of a person. Overall, pursuant to Article 22 of the Criminal Code, the crime shall be considered intentional. A mandatory condition for qualifying the committed act under this criterion is the establishment of a causal link between the commission of the crime and the occurrence of death.

Causing death through negligence is covered by Article 173 of the Criminal Code and does not require additional qualification under Article 104 or Part 3 of Article 106 of the Criminal Code.

A crime involving the intentional killing of a person enjoying international protection or members of their family is not covered by Part 3 of Article 173 of the Criminal Code and should be additionally qualified under the rules governing the cumulative classification of crimes.

A criminal group means an organized group, criminal organization, criminal community, transnational organized group, transnational criminal organization, transnational criminal community, terrorist group, extremist group, gang or illegal paramilitary formation.

The act provided for in Part 1 of Article 173 of the Criminal Code is classified as a serious crime.

The acts provided for in Parts 2 and 3 of Article 173 of the Criminal Code are classified as especially serious crimes.

Commentary on the Criminal Code of the Republic of Kazakhstan, 2021 edition, by Isidor Shamilovich Borchashvili, Honoured Figure of Kazakhstan, Doctor of Law, Professor, Academician of the Kazakhstan National Academy of Natural Sciences, 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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