Commentary on Article 178. Encroachment on the Life of the President of the Republic of Kazakhstan of the Criminal Code of the Republic of Kazakhstan

1. An encroachment on the life of the President of the Republic of Kazakhstan, committed with the purpose of terminating his state 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 of the Republic of Kazakhstan.

The public danger of an encroachment on the life of the President of the Republic of Kazakhstan lies in the fact that it causes destabilization of the political situation in the country, undermines the foundations of the constitutional order of the state, and may have a negative impact on the country's international standing.

Encroachments on the life of the head of state constitute the most socially dangerous and brutal form of resolving conflicts arising in the political life of any country. They create uncertainty in society regarding the stability and outcomes of the domestic and foreign policies pursued by the head of state.

The object of the crime under consideration is the legitimacy of state power in the Republic of Kazakhstan as the foundation of its existence and functioning, the unhindered exercise of his functions by the President of the Republic of Kazakhstan, as well as the life of the President.

Pursuant to subparagraph 30) of Article 3 of the Criminal Code, this crime is classified as a terrorist crime.

The victim of the commission of the act under consideration may only be the President of the Republic of Kazakhstan.

The status and powers of the President of the Republic of Kazakhstan are determined by the Constitutional Law of the Republic of Kazakhstan dated December 26, 1995, “On the President of the Republic of Kazakhstan”.

The objective element of this crime is expressed in an encroachment on the life of the President of the Republic of Kazakhstan, committed with the purpose of terminating his state activities or out of revenge for such activities.

These actions are identical to the actions associated with an encroachment on the life of the First President of the Republic of Kazakhstan — Elbasy, provided for in Article 177 of the Criminal Code. They are analyzed in detail in the commentary to Article 177 of the Criminal Code.

The subjective element of an encroachment on the life of the President of the Republic of Kazakhstan is characterized by direct intent. The person realizes that he or she is encroaching specifically on the life of the President of the Republic of Kazakhstan, foresees the possibility of socially dangerous consequences occurring, and desires the occurrence of such consequences.

The mandatory features of the subjective element of the corpus delicti under consideration are a special purpose — terminating the state activities of the President of the Republic of Kazakhstan, or a motive — revenge against the victim for such activities.

For the crime to be classified under Article 178 of the Criminal Code, the presence of at least one of the specified features of the subjective element is sufficient. If an encroachment on the life of the President of the Republic of Kazakhstan 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.

To determine whether the purpose of terminating the state activities of the President of the Republic of Kazakhstan exists, it is necessary to examine the powers of the President of the Republic of Kazakhstan. They are determined by the legal status of the President of the Republic of Kazakhstan and are clearly regulated by Articles 44–45 of the Constitution of the Republic of Kazakhstan and by the Constitutional Law of the Republic of Kazakhstan “On the President of the Republic of Kazakhstan”.

In accordance with Article 40 of the Constitution of the Republic of Kazakhstan, the President of the Republic of Kazakhstan is the head of state and its highest official, who determines the main directions of the state's domestic and foreign policy and represents Kazakhstan within the country and in international relations (paragraph 1).

The President of the Republic is the symbol and guarantor of the unity of the people and state power, the inviolability of the Constitution, and the rights and freedoms of individuals and citizens (paragraph 2 of Article 40).

The President of the Republic ensures the coordinated functioning of all branches of state power and the accountability of state authorities to the people (paragraph 3 of Article 40).

According to Article 44 of the Constitution, the President of the Republic of Kazakhstan:

addresses the people of Kazakhstan with an annual message on the situation in the country and the main directions of the domestic and foreign policy of the Republic;

appoints regular and extraordinary elections to the Parliament of the Republic and its Chambers; convenes the first session of Parliament and administers the oath of its deputies to the people of Kazakhstan; convenes an extraordinary session of Parliament; signs a law submitted by the Senate of Parliament within one month, promulgates the law, or returns the law or its individual articles for reconsideration and voting;

after consultations with the factions of political parties represented in the Mazhilis of Parliament, submits the candidacy of the Prime Minister of the Republic to the Mazhilis for approval; with the consent of the Mazhilis of Parliament, appoints the Prime Minister of the Republic; dismisses the Prime Minister of the Republic; determines the structure of the Government upon the proposal of the Prime Minister; upon the proposal of the Prime Minister, submitted after consultations with the Mazhilis of Parliament, appoints members of the Government; independently appoints the Ministers of Foreign Affairs, Defense, and Internal Affairs; dismisses members of the Government; administers the oath of members of the Government; presides over Government meetings when necessary on particularly important matters; repeals or suspends, in whole or in part, the acts of akims of regions, cities of republican significance, and the capital;

with the consent of the Senate of Parliament, appoints the Chairman of the National Bank, the Prosecutor General, and the Chairman of the National Security Committee of the Republic of Kazakhstan; dismisses them from their positions;

establishes, abolishes, and reorganizes state bodies directly subordinate and accountable to the President of the Republic, appoints their heads to office and dismisses them from office;

appoints and recalls heads of diplomatic missions of the Republic;

appoints, for a term of five years, the Chairman and two members of the Central Election Commission, as well as the Chairman and two members of the Accounts Committee for Control over the Execution of the Republican Budget;

makes decisions on holding a republican referendum;

in the interests of protecting the rights and freedoms of individuals and citizens, ensuring national security, sovereignty, and territorial integrity of the state, submits an appeal to the Constitutional Council concerning the review of an effective law or other legal act for its compliance with the Constitution of the Republic, or for the issuance of an opinion in the case provided for in paragraph 3 of Article 91 of the Constitution of the Republic of Kazakhstan;

conducts negotiations and signs international treaties of the Republic; signs instruments of ratification; receives credentials and letters of recall from diplomatic and other representatives of foreign states accredited to him;

is the Supreme Commander-in-Chief of the Armed Forces of the Republic, appoints and dismisses the senior command of the Armed Forces;

awards state honors of the Republic, confers honorary, highest military and other titles, class ranks, diplomatic ranks, and qualification classes;

resolves matters of citizenship of the Republic and the granting of political asylum;

exercises the power of pardon in respect of citizens;

in cases where democratic institutions, independence and territorial integrity, political stability of the Republic, or the security of its citizens are under a serious and immediate threat and the normal functioning of the constitutional bodies of the state has been disrupted, after official consultations with the Prime Minister and the Chairpersons of the Chambers of Parliament of the Republic, takes measures dictated by the circumstances, including the introduction of a state of emergency throughout Kazakhstan or in its individual localities and the use of the Armed Forces of the Republic, with immediate notification thereof to Parliament of the Republic;

in the event of aggression against the Republic or an immediate external threat to its security, introduces martial law throughout the territory of the Republic or in its individual localities, declares partial or general mobilization, and immediately informs Parliament thereof;

establishes the State Security Service subordinate to him;

appoints and dismisses the State Secretary of the Republic of Kazakhstan, determines his status and powers; establishes the Administration of the President of the Republic;

establishes the Security Council and other advisory and consultative bodies, as well as the Assembly of the People of Kazakhstan and the Supreme Judicial Council;

exercises other powers in accordance with the Constitution and laws of the Republic.

Similar powers are also provided for in Article 19 of the Constitutional Law of the Republic of Kazakhstan “On the President of the Republic of Kazakhstan”.

In accordance with paragraph 1 of Article 45 of the Constitution of the Republic of Kazakhstan, the President of the Republic of Kazakhstan, on the basis of and in pursuance of the Constitution and laws, issues decrees and orders that are binding throughout the territory of the Republic.

Paragraph 2 of Article 61 of the Constitution of the Republic of Kazakhstan establishes that the President of the Republic has the right to determine the priority of consideration of draft laws, which means that the relevant draft laws must be adopted as a matter of priority within two months.

Articles 7–18 of the Constitutional Law of the Republic of Kazakhstan “On the President of the Republic of Kazakhstan” provide for the following powers of the President of the Republic of Kazakhstan:

powers in the field of foreign policy (Article 7);

powers in the field of ensuring the state's defense capability and security (Article 8);

powers in relation to Parliament (Article 9);

powers in relation to the Government (Article 10);

powers in relation to the Constitutional Council (Article 11);

powers in relation to courts and judges (Article 12);

powers in relation to prosecution authorities (Article 13);

powers in relation to the Central Election Commission (Article 14);

powers in relation to the National Bank (Article 15);

powers in relation to the Accounts Committee for Control over the Execution of the Republican Budget (Article 16);

powers in relation to akims (Article 17);

powers in relation to state bodies directly subordinate and accountable to him (Article 17-1);

powers in relation to a republican referendum (Article 18).

In accordance with paragraph 3 of Article 42 of the Constitution of the Republic of Kazakhstan, the powers of the President of the Republic of Kazakhstan terminate from the moment the newly elected President of the Republic assumes office, as well as in the event of the early release or removal of the President from office, or upon his death.

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

An encroachment on the life of the President of the Republic of Kazakhstan differs from an encroachment on the life of the First President of the Republic of Kazakhstan — Elbasy, not only in terms of the subject of the crime but also in terms of the purpose for which the crimes under consideration are committed. Thus, in the case of an encroachment on the life of the First President of the Republic of Kazakhstan — Elbasy, the perpetrator commits the crime with the purpose of obstructing his lawful activities or out of revenge for such activities. An encroachment on the life of the President of the Republic of Kazakhstan, however, is committed with the purpose of terminating his state activities or out of revenge for such activities.

The act provided for in Article 178 of the Criminal Code belongs to the category of especially grave crimes.

Commentary of 2021 on the Criminal Code of the Republic of Kazakhstan 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 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.

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