Commentary on Article 182. Creation of, Leadership in, or Participation in the Activities of an Extremist Group of the Criminal Code of the Republic of Kazakhstan
1. Creation of an extremist group, as well as leadership thereof, —
shall be punishable by deprivation of liberty for a term of ten to seventeen years, with confiscation of property.
2. Participation in the activities of an extremist group or in crimes committed by it —
shall be punishable by deprivation of liberty for a term of eight to twelve years, with confiscation of property.
3. Acts provided for in paragraphs one or two of this Article, committed by a person through the use of their official position or by a leader of a public association, —
shall be punishable by deprivation of liberty for a term of twelve to seventeen years, with confiscation of property, deprivation of the right to hold certain positions or engage in certain activities for a term of up to five years, and deprivation of citizenship of the Republic of Kazakhstan, or without such deprivation.
Note. A person who voluntarily ceases participation in the activities of an extremist group shall be exempt from criminal liability if their actions do not contain the elements of another criminal offence.
The public danger of this crime lies in the fact that it poses a threat to the existing constitutional order and the political system of society, and creates a risk of loss of human life, infliction of significant property damage, or the occurrence of other socially dangerous consequences.
The object of this crime is public security and the inviolability of the constitutional foundations of the state. Additional objects may include human health, property, the established procedure for public administration, etc.
The objective aspect is expressed in the creation of an extremist group, as well as leadership thereof, and participation in the activities of an extremist group or in crimes committed by it.
Pursuant to subparagraph 40) of Article 3 of the Criminal Code, an extremist group is an organized group pursuing the objective of committing one or more extremist crimes.
Extremist crimes are acts provided for in Articles 174, 179, 180, 181, 182, 184, 258, 259, 266, 267, 404 (Parts 2 and 3) and 405 (subparagraph 39) of Article 3 of the Criminal Code.
In accordance with subparagraph 1) of Article 1 of the Law of the Republic of Kazakhstan dated February 18, 2005, “On Countering Extremism,” extremism means the organization and (or) commission by an individual and (or) legal entity, or an association of individuals and (or) legal entities, of actions on behalf of organizations recognized as extremist in accordance with the established procedure; actions by an individual and (or) legal entity, or an association of individuals and (or) legal entities, pursuing the following extremist objectives:
forcible change of the constitutional order, violation of the sovereignty of the Republic of Kazakhstan, the integrity, inviolability and inalienability of its territory, undermining the national security and defense capability of the state, violent seizure of power or violent retention of power, creation of, leadership in, and participation in an illegal paramilitary formation, organization of an armed mutiny and participation therein, incitement of social and class-based discord (political extremism);
incitement of racial, national and tribal discord, including discord associated with violence or calls for violence (national extremism);
incitement of religious enmity or discord, including that associated with violence or calls for violence, as well as the use of any religious practice that poses a threat to the security, life, health, morality, or rights and freedoms of citizens (religious extremism).
The creation of an extremist group is expressed in the commission of any actions resulting in the formation of an extremist group ready to carry out its tasks. The characteristics of an extremist group are:
the presence of two or more individuals;
the existence of a prior agreement;
the stability of the group;
the presence of an organizer and (or) leader;
the existence of a specific objective — the commission of one or more extremist crimes.
The creation of an extremist group involves carrying out certain organizational work: defining the objectives of its activities, developing plans, recruiting accomplices and assigning roles, and providing them with all the necessary tools.
Criminal liability for the creation of an extremist group arises from the moment several persons unite for the purpose of committing extremist crimes and carry out intentional actions aimed at creating conditions for the commission of extremist crimes or indicating that the extremist group is ready to implement its criminal intentions, regardless of whether the members of the extremist group have committed the planned crimes.
Paragraph 21 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 the creation of an extremist group (Part 1 of Article 182 of the Criminal Code) is considered a completed crime from the moment the group is actually formed, that is, from the moment several persons unite into a group.
Leadership of an extremist group should be understood as making decisions related both to the planning, material support and organization of the group's criminal activities, and to the commission of specific crimes by the group.
The aforementioned Regulatory Resolution of the Supreme Court notes that leadership of a group consists in exercising managerial functions in relation to the group as well as its individual members for the purpose of ensuring the group's activities.
Leadership of a group may be expressed, in particular, in approving plans for extremist activities, distributing criminal responsibilities within the group, directing group members during the commission of individual acts of extremism, as well as performing other actions aimed at achieving specific objectives (for example, organizing material and technical support and taking security measures with respect to group members).
The creation of and leadership in an extremist group presuppose direct participation in it; therefore, the actions of organizers or leaders should be classified only under Part 1 of Article 182 of the Criminal Code, and additional classification under Part 2 of Article 182 of the Criminal Code is not required. The same approach applies to the organizer or leader of a gang.
Thus, paragraph 2 of paragraph 15 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan “On Certain Issues of the Application by Courts of Legislation on Liability for Banditry and Other Criminal Offences Committed in Complicity” emphasizes that the actions of an organizer or leader of a gang or another criminal group who directly participated in criminal offences committed by the gang or criminal group are not subject to additional classification under the second parts of Articles 257, 262, 263, 264, 265, 267 and 268.
From the subjective perspective, the act is characterized by guilt in the form of direct intent. The perpetrator is aware of the socially dangerous nature of their actions in creating or leading an extremist group, as well as participating in the activities of an extremist group or in crimes committed by it, foresees that such actions will result in the functioning of an extremist group, and desires this outcome.
The purpose and motives of the criminal act are optional elements of the subjective aspect. The motives may vary widely: greed, political convictions, revenge, etc.
The subject is a sane individual who has reached the age of 16.
Part 2 of the Article under consideration provides for liability for:
participation in the activities of an extremist group;
participation in crimes committed by an extremist group.
Participation in an extremist group means not only direct participation in the crimes committed by it, but also the performance by members of the extremist group of other active actions aimed at financing it, supplying it with weapons and transport, identifying targets for crimes, etc. Participation in an extremist group must be active and involve actual conduct; however, it cannot be expressed merely through passive membership in it.
According to paragraph 21 of the aforementioned Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan, criminal liability under Part 2 of Article 182 of the Criminal Code for participation in an extremist group arises in cases where members of that group are aware of its illegality and of their membership in it, and act to achieve extremist objectives.
Participation in the activities of a group should be understood as joining the group (for example, taking an oath, becoming a member of an organization engaged in extremist activities, or carrying out assignments and instructions from the group's leader). Crimes in the form of a person's participation in a group are considered completed from the moment the person joins the group with the intention of participating in extremist activities or in the preparation for or commission of one or more extremist crimes.
Participation in crimes committed by an extremist group constitutes an independent form of extremism. In this case, persons bear liability without being members of the extremist group, but as individuals who knowingly participated in specific crimes committed by the extremist group. A crime in this form of extremism should be considered completed from the moment of participation in those crimes.
Part 3 of the Article under consideration establishes criminal liability for committing acts provided for in Parts 1 and 2 of this Article by a person using their official position or by a leader of a public association. These characteristics constitute aggravating circumstances, since, by virtue of the state or public positions they hold, such persons have greater opportunities to create, lead and participate in the activities of extremist groups.
Pursuant to subparagraph 21) of Article 3 of the Criminal Code, a leader of a public association is the head of a public association, as well as another member of a public association who, through their influence and authority, is capable of exercising unilateral managerial influence over the activities of that public association.
In accordance with Article 2 of the Law of the Republic of Kazakhstan dated May 31, 1996, “On Public Associations,” public associations in the Republic of Kazakhstan are political parties, trade unions and other associations of citizens established on a voluntary basis to achieve common objectives that do not contradict the legislation.
The Note to Article 182 of the Criminal Code states that a person who has voluntarily ceased participation in the activities of an extremist group shall be exempt from criminal liability, provided that their actions do not contain the elements of any other crime.
In accordance with paragraph 28 of the aforementioned Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan, voluntary cessation of participation means the termination by a person of their criminal activities while being aware of the possibility of continuing them. This may be expressed, for example, in withdrawing from the extremist group, failing to comply with the orders of its leaders, refusing to commit criminal offences, as well as taking other actions that facilitate the activities of the extremist group.
Acts provided for in Parts 1 and 3 of Article 182 of the Criminal Code are classified as especially grave crimes.
The act provided for in Part 2 of Article 182 of the Criminal Code is classified as a grave crime.
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 Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.
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