Commentary on Article 257 of the Criminal Code of the Republic of Kazakhstan. Establishment of a Terrorist Group, Leadership of Such a Group, and Participation in Its Activities

1. Establishment of a terrorist group, as well as leadership of such a group —

shall be punishable by imprisonment for a term of ten to seventeen years, with confiscation of property, deprivation of citizenship of the Republic of Kazakhstan, or without such deprivation.

2. Participation in the activities of a terrorist group or in terrorist acts committed by it —

shall be punishable by imprisonment for a term of eight to twelve years, with confiscation of property.

3. The 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 imprisonment for a term of twelve to fifteen years, with confiscation of property, deprivation of citizenship of the Republic of Kazakhstan, or without such deprivation.

The public danger of this crime lies in the fact that it poses a threat to public security, creates a risk of terrorist acts being committed, and gives rise to the danger of loss of human life, significant property damage, or other socially dangerous consequences.

The object of this crime is public security.

The objective element of the crime is expressed in the establishment of a terrorist group, as well as leadership of such a group.

Under Subparagraph 31) of Article 3 of the Criminal Code and Subparagraph 15) of Article 1 of the Law of the Republic of Kazakhstan “On Counteracting Terrorism,” a terrorist group is understood to mean an organized group pursuing the objective of committing one or more terrorist crimes.

Like an organized group, a terrorist group is characterized by such features and characteristics as stability, permanence of membership, close interconnection between its members, coordination of their actions, consistency of the forms and methods of criminal activity, and the duration of its existence.

The establishment of a terrorist group means the commission of any actions resulting in the unification of several persons for the purpose of committing terrorist acts.

Pursuant to Subparagraph 30) of Article 3 of the Criminal Code, terrorist crimes are those for which liability is provided under Articles 170, 171, 173, 177, 178, 184, 255, 256, 257, 258, 259, 260, 261, 269, and 270 of the Criminal Code.

Leadership of a terrorist group means determining the general direction of the activities of individuals or terrorist groups, selecting targets of attack, choosing the methods of attack, ensuring discipline and distributing responsibilities among members of the criminal formation, coordinating the activities of the terrorist group, approving plans for terrorist activities, and so forth.

By its legal construction, the elements of this crime are formal. The crime is deemed completed from the moment the group is established or actually formed, that is, from the moment several persons unite into a group.

From the subjective aspect, the act is characterized by guilt in the form of direct intent, expressed in the awareness of the socially dangerous nature of one's actions in establishing or leading a terrorist group, as well as participating in a terrorist formation, where the perpetrator foresees that, as a result of such actions, terrorist groups will function and desires this outcome.

The subject of the crime is a sane natural person who has attained the age of sixteen.

Liability under Part 2 of Article 257 of the Criminal Code of the Republic of Kazakhstan arises in cases of participation in the activities of a terrorist group or in terrorist acts committed by it.

Participation in the activities of a terrorist group or in terrorist acts committed by it is understood to include not only direct participation in terrorist acts being committed, but also the performance of other actions in the interests of the terrorist group, including financing, providing transportation, and systematically concealing members of a terrorist organization. Criminal liability under Article 257 of the Criminal Code for participation in a terrorist group arises in cases where the members of that group are aware of its illegality and of their membership in it, and act to achieve terrorist objectives.

Participation in the activities of a group should be understood as joining the group (for example, taking an oath of allegiance, becoming a member of an organization engaged in terrorist activities, and carrying out assignments and instructions from the group's leader). A criminal offense in the form of a person's participation in a group is deemed completed from the moment the person joins the group with the intention of participating in terrorist activities or in the preparation for or commission of one or more terrorist-related crimes.

Where members of a terrorist group commit a specific terrorist crime, their actions must be classified cumulatively under Part 2 of Article 257 and the relevant Articles of the Criminal Code (for example, Articles 255, 256, and 259).

Part 3 of Article 257 of the Criminal Code establishes liability for the commission of acts provided for in Parts 1 or 2 of this Article, where such acts are committed by a person through the use of their official position or by a leader of a public association (for a description of these features, see the commentary on Part 2 of Article 256 of the Criminal Code).

The subject of the crime provided for in Part 3 of Article 257 of the Criminal Code is special. Such subject is a person who uses their official position or a leader of a public association.

The acts provided for in Parts 1 and 3 of Article 257 of the Criminal Code constitute particularly serious crimes.

The act provided for in Part 2 of Article 257 of the Criminal Code constitutes a serious 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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