Commentary on Article 177. Encroachment on the Life of the First President of the Republic of Kazakhstan — Elbasy of the Criminal Code of the Republic of Kazakhstan
An encroachment on the life of the First President of the Republic of Kazakhstan — Elbasy, committed for the purpose of obstructing his lawful activities or out of revenge for such activities —
shall be punishable by imprisonment for a term of fifteen to twenty years or life imprisonment, with or without deprivation of citizenship.
The public danger of the crime under consideration is determined by the fact that, as a result of the committed act, the political situation in the country becomes destabilized, contradictions in the political sphere become aggravated, the authority of the state is undermined, and uncertainty regarding stability arises within society.
The commission of this crime violates the political and legal status, prerogatives and guarantees of the First President of the Republic of Kazakhstan — Elbasy, guaranteed by the Constitution of the Republic of Kazakhstan, the Constitutional Law of December 26, 1995, “On the President of the Republic of Kazakhstan,” and the Constitutional Law of the Republic of Kazakhstan of July 20, 2000, “On the First President of the Republic of Kazakhstan — Elbasy.”
The object of the crime under consideration is the legitimacy of the state power of the Republic of Kazakhstan as the basis for its existence and functioning, the unhindered performance of his functions by the First President of the Republic of Kazakhstan — Elbasy, as well as the life of the First President of the Republic of Kazakhstan — Elbasy.
Taking into account its public danger and political significance, this act, pursuant to subparagraph 30) of Article 3 of the Criminal Code, is classified as a terrorist crime.
Only the First President of the Republic of Kazakhstan — Elbasy may be recognized as the victim.
When analyzing the legal status of the First President of the Republic of Kazakhstan — Elbasy, it should be taken into account that Kazakhstan is a state with a presidential form of government.
According to Article 2 of the Constitutional Law of the Republic of Kazakhstan “On the First President of the Republic of Kazakhstan — Elbasy,” the First President of the Republic of Kazakhstan, who stands at the origins of the establishment of Kazakh statehood and has made an outstanding contribution to the development of sovereign Kazakhstan as a democratic, secular, legal and social state, is Elbasy. Until 2017, this honorary title had this designation only in the text in the state language, whereas the expression “Leader of the Nation” was used in the Russian-language version. In accordance with the amendments introduced by the Constitutional Law of the Republic of Kazakhstan dated June 15, 2017, to the Constitutional Law “On the First President of the Republic of Kazakhstan — Leader of the Nation,” the words “Leader of the Nation” in the title and text of the Law were replaced with the word “Elbasy.”
By virtue of his historical mission, the First President of the Republic of Kazakhstan — Elbasy shall have the following rights for life:
- to address the people of Kazakhstan, state bodies and officials with initiatives on the most important issues of state-building, domestic and foreign policy, and national security, which are subject to mandatory consideration by the relevant state bodies and officials;
- to address the Parliament of the Republic of Kazakhstan and its Chambers, as well as speak at meetings of the Government of the Republic when discussing issues of importance to the country; to head the Assembly of the People of Kazakhstan (it should be noted that, on April 28, 2021, N.A. Nazarbayev relinquished his powers as Chairman of the Assembly of the People of Kazakhstan and transferred them to the incumbent President of the Republic of Kazakhstan); to head the Security Council of the Republic of Kazakhstan; to be a member of the Constitutional Council of the Republic of Kazakhstan.
Initiatives being developed on the main directions of the state's domestic and foreign policy shall be coordinated with the First President of the Republic of Kazakhstan — Elbasy.
Obstructing the lawful activities of the First President of the Republic of Kazakhstan — Elbasy, publicly insulting him or otherwise encroaching upon his honor and dignity, as well as desecrating images of the First President of the Republic of Kazakhstan — Elbasy, shall not be permitted and shall be prosecuted by law.
The objective element of this crime is expressed in an encroachment on the life of the First President of the Republic of Kazakhstan — Elbasy, committed for the purpose of obstructing his lawful activities or out of revenge for such activities.
The objective element of the act under consideration may be characterized by two components:
- an encroachment in the form of an attempt on the life of the First President of the Republic of Kazakhstan — Elbasy;
- an encroachment in the form of the murder of the First President of the Republic of Kazakhstan — Elbasy.
The term “encroachment” is defined as an “unlawful attempt to do something (to encroach means to attempt to do something).”
An encroachment on the life of the First President of the Republic of Kazakhstan — Elbasy constitutes an act committed exclusively in the form of active actions aimed at depriving the First President of the Republic of Kazakhstan — Elbasy of his life.
The methods used to commit murder do not affect the legal classification; however, where certain optional elements of the objective side (method, circumstances, location) are present, the liability of the perpetrator may arise under the cumulative classification of criminal offenses. For example, an encroachment on the life of the First President of the Republic of Kazakhstan — Elbasy by means of an explosion during a rally or demonstration. In this case, the act should be classified as an encroachment on the life of the First President of the Republic of Kazakhstan — Elbasy (Article 177 of the Criminal Code) and an act of terrorism (Article 255 of the Criminal Code).
The use, in committing an encroachment on the life of the First President of the Republic of Kazakhstan — Elbasy, of unlawfully manufactured weapons, as well as unlawfully acquired or illegally possessed weapons, ammunition, explosives and explosive devices, entails the classification of the actions under the cumulative application of the provisions concerning an encroachment on the life of the First President of the Republic of Kazakhstan — Elbasy (Article 177 of the Criminal Code), illegal acquisition, transfer, sale, storage, transportation or carrying of weapons, ammunition, explosives and explosive devices (Article 287 of the Criminal Code), as well as illegal manufacture of weapons (Article 288 of the Criminal Code).
The actual death of the First President of the Republic of Kazakhstan — Elbasy as a result of an encroachment on his life is covered by the elements of this crime and does not require additional classification as murder under Article 99 of the Criminal Code. Likewise, the infliction of bodily harm is covered by this crime and does not require additional classification under the provisions of the Special Part of the Criminal Code.
In constructing this corpus delicti, the legislator, taking into account the exceptional danger of the perpetrator's actions, moved the point at which the crime is deemed completed to the attempt stage. The act is deemed completed from the moment of the encroachment on life, regardless of whether death occurs.
The subjective element of an encroachment on the life of the First President of the Republic of Kazakhstan — Elbasy is characterized by direct intent. The person is aware that they are encroaching on the life of the First President of the Republic of Kazakhstan — Elbasy, foresees the possibility of socially dangerous consequences in the form of death, and desires the death of the First President of the Republic of Kazakhstan — Elbasy.
The mandatory elements of the subjective side of the analyzed corpus delicti are a special purpose — obstructing the lawful activities of the First President of the Republic of Kazakhstan — Elbasy, or a motive — revenge against the victim for such activities.
Where an encroachment on the life of the First President of the Republic of Kazakhstan — Elbasy is committed without the purpose specified in the law or for other motives, the act must be classified under Article 99 of the Criminal Code.
In cases where the perpetrator mistakenly kills a person other than the First President of the Republic of Kazakhstan — Elbasy, liability arises under the cumulative classification of crimes — as an encroachment on the life of the First President of the Republic of Kazakhstan — Elbasy (Article 177 of the Criminal Code) and the murder of another person (Article 99 of the Criminal Code).
Obstructing lawful activities means creating various impediments. In particular, actions by the perpetrator such as exerting any kind of influence on Elbasy while he is exercising his powers may be regarded as obstructing the lawful activities of the First President of the Republic of Kazakhstan — Elbasy.
The activities of the First President of the Republic of Kazakhstan — Elbasy derive from his special legal status and are clearly regulated by the Constitution of the Republic of Kazakhstan and the Constitutional Law “On the First President of the Republic of Kazakhstan — Elbasy.”
Thus, obstructing the lawful activities of the First President of the Republic of Kazakhstan — Elbasy and the exercise of his status entails liability under this Article.
The lawfulness of the activities of the First President of the Republic of Kazakhstan — Elbasy means that such activities comply with the requirements of laws and other regulatory legal acts and are carried out within the scope of his powers.
An encroachment on the life of the First President of the Republic of Kazakhstan — Elbasy, not connected with his activities but committed for personal reasons, shall be classified under the Articles of the Criminal Code concerning crimes against the person.
Liability under Article 177 of the Criminal Code may also arise where an encroachment on the life of the First President of the Republic of Kazakhstan — Elbasy is committed out of revenge for his activities. In such a case, it is also important to establish the connection between the criminal conduct and the state activities of the First President of the Republic of Kazakhstan — Elbasy.
Revenge reflects dissatisfaction or disagreement with the state's policy and the actions or omissions being carried out (for example, the victim's refusal to perform actions in the interests of the perpetrator or their close relatives).
The subject of the crime is a sane natural person who has reached the age of fourteen.
Commentary to the Criminal Code of the Republic of Kazakhstan, 2021, by Isidor Shamilovich Borchashvili, Honored 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, Honored Worker of the Ministry of Internal Affairs of the Republic of Kazakhstan.
Constitution Law Code Regulatory Act Order Decision Resolution Advocate Almaty Lawyer Legal Services Legal Consultation Civil Criminal Administrative Cases and Disputes Defense Arbitration Legal Company of Kazakhstan Law Office Court Cases Declaration Decree Order Resolution Decision Report Conclusion Application Conclusion Convention Contract Memorandum Methodology Rules Note Regulations Program Charter Charter Article Commentary Regulations Protocol Program Rules Addresses
