Commentary on Article 234. Economic Smuggling of the Criminal Code of the Republic of Kazakhstan

1. The movement, on a large scale, across the customs border of the Eurasian Economic Union of goods or other items, including goods prohibited or restricted from movement across the customs border, items and valuables for which special rules for movement across the customs border have been established, with the exception of those specified in Article 286 of this Code, committed outside or concealed from customs control, or through the fraudulent use of documents or means of customs identification, or involving non-declaration or knowingly false declaration, or the indication of knowingly false information in an application for the release of goods prior to the submission of a goods declaration or in an application for the performance of operations involving temporarily exported means of international transport that constitute goods placed under the temporary admission (import) customs procedure, including the submission of invalid documents, forged documents and (or) documents containing knowingly inaccurate (false) information, -

shall be punishable by a fine of up to eighty monthly calculation indices, or corrective labor in the same amount, or community service for a period of up to eighty hours, or arrest for a period of up to twenty days, with or without confiscation of property.

2. The same act committed:

1) repeatedly;

2) by a person using their official position;

3) with the use of violence against a person carrying out border or customs control;

4) on an especially large scale;

5) by a group of persons acting in prior conspiracy, -

shall be punishable by a fine of up to three thousand monthly calculation indices, or corrective labor in the same amount, or community service for a period of up to eight hundred hours, or restriction of liberty for a period of up to three years, or imprisonment for the same period, with confiscation of property.

3. The acts provided for in Parts One or Two of this Article, committed:

1) by a person authorized to perform state functions, or a person equated to such a person, or an official, or a person holding a responsible public office, where such acts are associated with the use of their official position;

2) by a criminal group, -

shall be punishable by imprisonment for a period of three to eight years, with confiscation of property, and, in the cases provided for in subparagraph 1), with lifelong deprivation of the right to hold certain positions or engage in certain activities.

The public danger of economic smuggling (Part 1 constitutes a criminal misdemeanor, Parts 2 and 3 constitute crimes) lies in the fact that this act causes substantial harm to the economic security of the Republic of Kazakhstan.

According to subparagraph 4) of Article 4 of the Law of the Republic of Kazakhstan dated January 6, 2012, “On National Security of the Republic of Kazakhstan,” economic security is the state of protection of the national economy of the Republic of Kazakhstan against actual and potential threats, ensuring its sustainable development and economic independence. According to subparagraph 11) of paragraph 1 of Article 6 of the aforementioned Law, one of the main threats to national security is damage to the economic security of the state, including the use of strategic resources contrary to the interests of the country, obstruction of innovative development and growth in investment activity, uncontrolled export of capital and goods outside the country, and the growth of the shadow economy.

The object of smuggling should be recognized as the economic interests of the Republic of Kazakhstan. Additional objects may include the established management procedures, the health of the population of Kazakhstan, and others.

According to the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated July 18, 1997, “On the Practice of Applying Legislation on Criminal Liability for Smuggling,” the objects of smuggling are understood to mean any movable items of the material world, including currency, currency valuables, electrical, thermal or other types of energy, and vehicles (paragraph 6).

These also include cultural property of artistic, scientific, historical and archaeological significance to the heritage of peoples — works of art, antiques and other items possessing such significance, intellectual property objects, species of animals and plants threatened with extinction, their parts and derivatives.

Liability for the illegal movement across the customs border of the Eurasian Economic Union of the aforementioned items, as well as other items not withdrawn from circulation or items whose circulation is not restricted (for example, food products, clothing, footwear, perfumery products, etc.), is established under Article 234 of the Criminal Code.

Smuggling causes harm primarily to the economic interests of the state because, firstly, customs duties established on imported and exported goods are not received by the state budget. Secondly, goods are exported from the Republic (for example, raw materials of strategic importance), the export of which is prohibited due to their significance for the country's economy.

In accordance with subparagraph 45) of paragraph 1 of Article 3 of the Code of the Republic of Kazakhstan dated December 26, 2017, “On Customs Regulation in the Republic of Kazakhstan,” goods are any movable property, including the currencies of the member states of the Eurasian Economic Union, securities and (or) currency valuables, traveler's checks, electrical energy, as well as other movable items equated to immovable property.

According to subparagraph 58) of paragraph 1 of Article 3 of the Code of the Republic of Kazakhstan “On Customs Regulation in the Republic of Kazakhstan,” means of international transport are vehicles used for the international transportation of cargo, passengers and (or) baggage, together with special equipment located on them and intended for loading, unloading, handling and protecting cargo, items of material and technical supplies and equipment, as well as spare parts and equipment intended for the repair, maintenance or operation of the vehicle while en route.

The subject matter of this criminal offense cannot include the items specified in Article 286 of the Criminal Code: narcotic drugs, psychotropic substances, their analogues, precursors, potent, poisonous, toxic, radioactive or explosive substances, weapons, military equipment, explosive devices, firearms and ammunition, nuclear, chemical, biological and other types of weapons of mass destruction, as well as materials and equipment that may be used to create weapons of mass destruction.

According to paragraph 1 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan “On the Practice of Applying Legislation on Criminal Liability for Smuggling,” economic smuggling, liability for which is provided for in Article 234 of the Criminal Code, means the illegal movement of goods or other valuables and items across the customs border of the Eurasian Economic Union.

Smuggling of items withdrawn from circulation or items whose circulation is restricted, liability for which is provided for in Article 286 of the Criminal Code, means the illegal movement of such goods across the customs border of the Eurasian Economic Union and (or) the State Border of the Republic of Kazakhstan.

The circumstances distinguishing criminally punishable smuggling from smuggling provided for under the Code of Administrative Offenses of the Republic of Kazakhstan, as well as from violations of customs rules associated with the movement of goods and items across the customs border, are the large scale of the smuggling or the movement of goods for which special rules have been established.

The definitions of the concepts “customs border” and “state border” are provided in the Code of the Republic of Kazakhstan “On Customs Regulation in the Republic of Kazakhstan” and the Law of the Republic of Kazakhstan dated January 16, 2013, “On the State Border of the Republic of Kazakhstan.”

It is mandatory to indicate in procedural investigative and judicial documents the large or especially large scale and other qualifying elements of smuggling, including special rules governing the movement of certain items.

From the objective side, the criminal offense under consideration is expressed in the movement, on a large scale, across the customs border of the Eurasian Economic Union of goods or other items, including goods prohibited or restricted from movement across the customs border, items and valuables for which special rules for movement across the customs border have been established, with the exception of those specified in Article 286 of the Criminal Code, committed outside or concealed from customs control, or through the fraudulent use of documents or means of customs identification, or involving non-declaration or knowingly false declaration, or the indication of knowingly false information in an application for the release of goods prior to the submission of a goods declaration or in an application for the performance of operations involving temporarily exported means of international transport that constitute goods placed under the temporary admission (import) customs procedure, including the submission of invalid documents, forged documents and (or) documents containing knowingly inaccurate (false) information.

According to subparagraph 51) of paragraph 1 of Article 3 of the Code of the Republic of Kazakhstan “On Customs Regulation in the Republic of Kazakhstan,” the movement of goods across the customs border of the Customs Union means the movement of goods across the customs border of the Eurasian Economic Union, namely, the importation of goods into the customs territory of the Eurasian Economic Union or the exportation of goods from the customs territory of the Eurasian Economic Union.

This provision is also established in paragraph 2 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan “On the Practice of Applying Legislation on Criminal Liability for Smuggling,” which states that the illegal movement of goods or other valuables and items may be carried out both by importing them into the customs territory and by exporting them from that territory.

Import and export shall mean the movement of smuggling items by any method (transportation or dispatch using any type of transport, including by air, shipment by mail, carrying in one's hands, in clothing pockets, as hand luggage, etc.).

The illegal export of cultural property and objects of national cultural heritage outside the Republic of Kazakhstan, or their failure to return to the Republic of Kazakhstan, where such items are moved across the state border into another state of the Eurasian Economic Union, shall be classified under Part 1-1 of Article 203 of the Criminal Code.

The illegal export of cultural property and objects of national cultural heritage outside the Republic of Kazakhstan, or their failure to return to the Republic of Kazakhstan, where such items are moved across the customs border of the Eurasian Economic Union and where the actions of the person also contain the elements of economic smuggling, shall be classified under the cumulative provisions of Part 1-1 of Article 203 of the Criminal Code and the relevant part of Article 234 of the Criminal Code.

The movement of currency valuables across the customs border of the Customs Union is carried out in accordance with the currency legislation of the Republic of Kazakhstan.

The movement, including the movement of goods, items and valuables prohibited or restricted from movement across the customs border, for which special rules governing their movement across the customs border have been established, may be carried out by one of the following methods:

• outside customs control;
• concealed from customs control;
• through the fraudulent use of documents or means of customs identification;
• through non-declaration;
• through false declaration;
• by indicating knowingly false information in an application for the release of goods prior to the submission of a goods declaration or in an application for the performance of operations involving temporarily exported means of international transport that constitute goods placed under the temporary admission (import) procedure, including through the submission of invalid documents, forged documents or documents containing knowingly inaccurate (false) information.

No harmful consequences are required to occur in order for such actions to be recognized as criminal.

The illegal movement of goods across the customs border of the Eurasian Economic Union means the movement of goods across the customs border of the Eurasian Economic Union outside the locations through which, in accordance with Article 30 of the Customs Code, goods must or may be moved across the customs border of the Eurasian Economic Union, or outside the working hours of the customs authorities located at such places, or through concealment from customs control, or through inaccurate customs declaration or non-declaration of goods, or through the use of documents containing inaccurate information about the goods and (or) the use of forged means of identification or means of identification relating to other goods (Article 51 of the Customs Code).

Illegal movement is carried out both at checkpoints and other locations designated by law for crossing the border (under the guise of legal movement), and outside such locations (by illegal means).

Paragraph 5 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan “On the Practice of Applying Legislation on Criminal Liability for Smuggling” provides a description of all methods of smuggling.

Concealment from customs control consists of hiding goods or other valuables and items, using concealed compartments or other methods that make their detection difficult during transportation, or disguising certain items as other items.

The movement of smuggling items outside customs control consists of their dispatch and transportation outside customs posts, checkpoints and other locations designated by the legislation and customs authorities of the Republic of Kazakhstan for customs declaration, or outside the time established for carrying it out.

The fraudulent use of customs and other documents or means of customs identification involves presenting to customs authorities, as well as persons carrying out border control, invalid documents, documents obtained illegally, forged documents, and documents containing false information; using forged seals, plombs, stamps and other similar means of customs identification; or presenting an authentic means of identification relating to other objects.

Non-declaration or false declaration means the declaration by the declarant to the customs authority, using a customs declaration, of inaccurate information about goods (name, value, quantity, weight, etc.), the selected customs procedure and (or) other information required for customs purposes, or failure to fulfill the obligation to submit such a declaration containing the specified information about the goods during customs declaration.

In accordance with subparagraph 21) of paragraph 1 of Article 3 of the Customs Code of the Republic of Kazakhstan, customs declaration means the declaration by the declarant to the customs authority, using a customs declaration, of information about goods, the selected customs procedure and (or) other information necessary for the release of goods.

When economic smuggling is committed, the movement is carried out across the customs border.

In accordance with subparagraph 8) of paragraph 1 of Article 3 of the Customs Code, the customs territory of the Eurasian Economic Union is the single customs territory of the Eurasian Economic Union, which comprises the territories of the member states of the Eurasian Economic Union, as well as the exclusive economic zones and continental shelves of the member states, artificial islands, installations, structures and other facilities over which the member states of the Eurasian Economic Union exercise exclusive jurisdiction.

The qualification of the actions of the perpetrator under this Article is possible only in the event of the illegal movement of goods and other items across the customs border of the Eurasian Economic Union on a large scale.

In accordance with paragraph 38) of Article 3 of the Criminal Code, the value of goods or other objects being moved and subject to customs control is recognized as large if it exceeds ten thousand monthly calculation indices.

In accordance with the current legislation of the Republic of Kazakhstan, the following procedure has been established for the import and export of cash and (or) monetary instruments by individuals.

The import into the Republic of Kazakhstan or export from the Republic of Kazakhstan of cash foreign and (or) national currency, bills of exchange, checks (including traveler's checks), and securities in documentary form from or to a territory that forms part of the customs territory of the Eurasian Economic Union is carried out without restrictions and without customs declaration.

When cash foreign and (or) national currency (excluding coins made of precious metals) and (or) traveler's checks are imported into the Republic of Kazakhstan from the territory of countries that are not members of the Eurasian Economic Union, or exported from the Republic of Kazakhstan to the territory of such countries in a single transaction, if their total amount exceeds the equivalent of 10,000 US dollars, the said valuables are subject to written customs declaration by submitting a passenger customs declaration for the entire amount of the valuables being imported or exported.

If a person commits smuggling of cash foreign and (or) national currency and (or) traveler's checks, the portion of such valuables that is not subject to mandatory written declaration under the legislation of the Republic of Kazakhstan, that is, an amount not exceeding the equivalent of 10,000 US dollars, cannot be recognized as the subject matter of smuggling and cannot be included in the scope of the charges brought against the person. This amount shall be returned to its owner.

According to paragraph 8 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan “On the Practice of Applying Legislation on Criminal Liability for Smuggling,” the value of smuggling items is determined on the basis of the customs value of the goods at the time the criminal offense was committed, based on the opinion of a specialist (expert) in accordance with the rules established by legislation on customs matters and criminal procedure legislation.

In the absence of information on the customs value of the smuggling items, their value is determined on the basis of state-regulated prices (for example, in cases involving the smuggling of counterfeit alcoholic beverages and other counterfeit goods). In the absence of such information, the price and value of the goods are determined on the basis of the opinion of an expert (specialist).

“When determining whether acts provided for in Article 234 of the Criminal Code have been committed on a large or especially large scale,” paragraph 8-1 of the aforementioned Resolution of the Supreme Court states, “only the value of that portion of the goods or other items that has been moved across the customs border outside or concealed from customs control, or through the fraudulent use of documents or means of customs identification, as well as the value of goods, items and valuables prohibited or restricted from movement across the customs border, for which special rules governing movement across the customs border have been established, and which have not been declared or have been falsely declared, shall be taken into account.

The remaining portion of the goods or other items that has been moved across the customs border in compliance with the requirements of customs and other legislation (provided that such goods have not been seized or placed under arrest in accordance with the laws of the Republic of Kazakhstan) shall be released.”

The criminal offense shall be considered completed:

- in the case of import and export carried out illegally, from the moment the border is directly crossed;

- in the case of import carried out under the guise of legal movement, from the moment the customs declaration is registered, and in respect of items for which special rules have been established, from the moment the border control procedure is completed;

- in the case of export carried out under the guise of legal movement, from the moment the customs declaration is registered.

In cases where goods are moved at checkpoints and other locations designated by law, but outside the established working hours of the customs authorities, the criminal offense shall be considered completed from the moment the border is crossed.

From the subjective side, the criminal offense is committed with direct intent. The person is aware of the public danger of their actions, foresees the occurrence of socially dangerous consequences and desires their occurrence.

A person whose intent is directed at the illegal movement of goods or other valuables and items belonging to different persons, including themselves, must bear liability for the entire combined volume of smuggling items moved jointly.

The owner of a separate portion of such goods or other valuables and items, whose intent does not encompass the actions of other persons involving the illegal movement of the remaining portion of the smuggling items, shall bear criminal liability only for the smuggling of the property belonging to that person.

The actions of persons who are not owners of the smuggling items but are guilty of knowingly moving such items illegally across the customs border of the Eurasian Economic Union for remuneration, as couriers, etc., shall be classified in the same manner.

The commission of smuggling is objectively associated with evasion of the payment of mandatory payments and taxes collected by customs authorities, which is encompassed by the direct intent of the perpetrator simultaneously with the illegal movement of goods or other valuables and constitutes, as a rule, the purpose of such movement. Therefore, these actions are not subject to additional qualification for evasion of taxes and other mandatory payments to the budget.

Such qualification may apply only in cases where the actions constituting the elements of smuggling and the criminal evasion of mandatory payments are committed at different times.

Actions that constitute elements of the fraudulent use of customs and other documents (official forgery, forgery of payment marks, forgery of documents) also do not require additional qualification.

In cases where other criminal offenses are committed alongside smuggling, in particular those involving currency, narcotic drugs, psychotropic substances, their analogues, firearms and ammunition, etc., or involving violations of the state border that are subject to a different type of control from customs control (namely, border control, currency control, drug control, etc.), the acts committed must be classified cumulatively under the relevant provisions of criminal law governing the respective criminal offenses.

For this corpus delicti, it is irrelevant what motivated the perpetrator's desire to illegally move goods or other items across the customs border of the Eurasian Economic Union.

The subject of the criminal offense may be persons who have reached the age of sixteen.

Part 2 of Article 234 of the Criminal Code of the Republic of Kazakhstan establishes liability for economic smuggling committed:

1) repeatedly;

2) by a person using their official position;

3) with the use of violence against a person carrying out border or customs control;

4) on an especially large scale;

5) by a group of persons acting in prior conspiracy.

Smuggling is recognized as having been committed repeatedly if it has been committed two or more times. In this regard, it is important to establish that the person has not been convicted of the previous crime or released from criminal liability for previously committed smuggling, and that the limitation periods established by Articles 71 and 88 of the Criminal Code have not expired.

A person using their official position should be understood as a person who, by virtue of their official duties, is required to carry out customs or border control, perform the relevant actions involving the inspection of goods or other valuables and items moved across the customs border of the Eurasian Economic Union and (or) the State Border of the Republic of Kazakhstan, and authorize the crossing of the border.

Smuggling committed through the use of one's official position does not require additional qualification under the articles of criminal law concerning corruption-related and other criminal offenses against the interests of public service and public administration.

Violence applied against a person carrying out border or customs control most often takes the form of physical influence (for example, causing minor or moderate bodily harm) or psychological influence (threatening to use physical violence) for the purpose of forcing such person not to obstruct the illegal movement of goods or other items across the customs border.

If the violence results in death or grievous bodily harm, the acts committed should be classified cumulatively under Part 2 of Article 234 of the Criminal Code and Articles 99 or 106 of the Criminal Code.

In accordance with subparagraph 3) of Article 3 of the Criminal Code, an especially large amount, in relation to the criminal offense under consideration, is recognized as the value of the goods moved exceeding twenty thousand monthly calculation indices.

Smuggling shall be considered committed by a group of persons acting in prior conspiracy if the persons participating in it had agreed in advance to commit smuggling jointly.

The particularly aggravated form of the crime under consideration consists of the acts provided for in Parts 1 or 2 of Article 234 of the Criminal Code, committed:

- by a person authorized to perform state functions, or a person equated to such a person, or an official, or a person holding a responsible public office, where such acts are associated with the use of their official position;

- by a criminal group.

According to subparagraph 27) of Article 3 of the Criminal Code, a person authorized to perform state functions is recognized as a civil servant in accordance with the legislation of the Republic of Kazakhstan on public service, or a deputy of a maslikhat.

The concepts of “a person authorized to perform state functions or a person equated to such a person,” “official,” and “person holding a responsible public office” are defined in subparagraphs 28), 26), and 16) of Article 3 of the Criminal Code of the Republic of Kazakhstan.

The concept of a criminal group is defined in subparagraph 24) of Article 3 and Part 3 of Article 31 of the Criminal Code.

The act provided for in Part 1 of Article 234 of the Criminal Code constitutes a criminal misdemeanor.

The act provided for in Part 2 of Article 234 of the Criminal Code constitutes a crime of medium gravity.

The act provided for in Part 3 of Article 234 of the Criminal Code constitutes a serious crime.

Commentary on the Criminal Code of the Republic of Kazakhstan, 2021, by Isidor Shamilovich Borchashvili, Honored 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 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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