Commentary on Article 262 of the Criminal Code of the Republic of Kazakhstan. Creation and Leadership of an Organized Group or Criminal Organization, as well as Participation in Them
1. Creation of an organized group or a criminal organization, as well as leadership thereof or of a structural subdivision of a criminal organization —
shall be punishable by deprivation of liberty for a term of seven to twelve years, with confiscation of property.
2. Participation in an organized group or a criminal organization —
shall be punishable by deprivation of liberty for a term of five to ten years, with confiscation of property.
3. Acts provided for in parts one or two of this Article, committed by a person through the use of their official position —
shall be punishable by deprivation of liberty for a term of eight to thirteen years, with confiscation of property.
Note. In Articles 262, 263, 264, 265 and 268 of this Code, a person who voluntarily terminates participation in a criminal group and actively contributes to the disclosure or prevention of crimes committed or being committed by the criminal group shall be released from criminal liability if their actions do not contain the elements of another criminal offense.
Organized crime poses a public danger because it not only disrupts the normal functioning of the social and economic institutions of society and the State, but also creates a direct threat to national and international security and stability.
The object of the crime is public security.
The objective aspect of the act under consideration is expressed in:
the creation of an organized group or a criminal organization (Part 1);
leadership of such a group or organization, or of a structural subdivision of a criminal organization (Part 1);
participation in an organized group or a criminal organization (Part 2).
An organized group is a stable group of two or more persons who have united in advance for the purpose of committing one or several criminal offenses (subparagraph 36) of Article 3 of the Criminal Code).
A criminal organization is an organized group whose participants are distributed among organizationally, functionally and (or) territorially separate groups (structural subdivisions) (subparagraph 25) of Article 3 of the Criminal Code of the Republic of Kazakhstan). A criminal organization is a more dangerous type of organized group due to its structural nature.
An organized group differs from a group of persons and a group of persons acting by prior conspiracy by the characteristic of stability.
According to paragraph 11 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated June 21, 2001, “On Certain Issues of the Application by Courts of Legislation on Liability for Banditry and Other Criminal Offenses Committed in Complicity”:
“The fact that a group of persons acting by prior conspiracy commits a number of crimes over a certain period of time through coordinated actions and the use of permanent forms and methods of criminal activity does not constitute sufficient grounds for recognizing the existence of a criminal group.
A criminal group differs from a group of persons acting by prior conspiracy by a higher degree of organization and stability. Its characteristics may include, in particular: the presence of a leader (leaders) and the subordination of other members to him (them), the awareness of other participants of their membership in the group, the existence of a certain hierarchy and common material and financial resources, compliance with the rules (discipline) established within the criminal group, and so forth.
The characteristics of a criminal group, in accordance with the requirements of Article 113 of the Criminal Procedure Code, shall be subject to proof alongside other elements of the corpus delicti.”
An organized group may also be created for the purpose of committing a single crime that requires thorough preparation.
In order to survive in conditions of competition with other criminal formations and expand their sphere of influence, organized groups either unite with one another or become incorporated into the structure of a more powerful criminal formation — a criminal organization. Thus, an organized group constitutes a structural subdivision of a criminal organization.
The creation of an organized criminal group or a criminal organization should be understood as any active, purposeful actions resulting in the actual formation of the aforementioned criminal groups. Such actions may include recruiting participants, acquiring weapons, ammunition, communication equipment, documents, vehicles and other material resources, developing an organizational structure and criminal plans, and recruiting individuals.
In terms of its legal structure, the corpus delicti is formal. The crime shall be considered completed from the moment an organized group or criminal organization is created, regardless of whether any crimes were planned or committed. The process of forming the aforementioned criminal formations itself should be regarded as preparation for their creation.
If it is established that these formations were intended to be created for the purpose of committing a specific serious or especially serious crime (for example, murder), the actions of the persons shall also be classified as preparation for the commission of that crime.
Leadership of an organized group, a criminal organization or a structural subdivision of a criminal organization shall be understood as making decisions related both to the planning, material support and organization of the criminal activities of these formations and to the preparation and commission of specific crimes by them. Such actions include, for example, developing plans for attacks, directing the commission of specific attacks, and so forth.
Leadership of an organized group may be exercised by either one person or several persons.
The failure to establish evidence that a particular person (or persons) led the criminal group does not exclude the existence of a criminal group.
According to paragraph 13 of the above-mentioned Regulatory Resolution of the Supreme Court dated June 21, 2001, an organized criminal group may exist without a leader. Such cases include situations where the participants of a small organized criminal group, without selecting a leader from among themselves, jointly resolve issues relating to criminal activities and, as a rule, act as co-perpetrators of the crimes they commit.
The crime shall be deemed completed from the moment actual leadership of the aforementioned criminal groups begins. Actions aimed at creating an organized group or a criminal organization but which did not result in their creation for reasons beyond the control of the perpetrator shall be classified as an attempt to create an organized group or a criminal organization.
From the subjective perspective, the act is characterized by guilt in the form of direct intent, meaning that the person is aware of the socially dangerous nature of their actions aimed at creating or leading an organized group or a criminal organization, or a structural subdivision of a criminal organization, foresees that such actions will result in the functioning of criminal formations, and desires this outcome.
The subject is a sane natural person who has reached the age of 16.
Criminal liability for participation in an organized group or a criminal organization is provided for in Part 2 of Article 262 of the Criminal Code.
Participation is expressed in joining an organized group or a criminal organization and performing actions in accordance with the objectives and plans of the criminal group, as well as carrying out instructions from its leader (standing guard, performing one-time assignments or any other work, participating in the execution of an assignment, and so forth).
According to paragraph 14 of the above-mentioned Regulatory Resolution of the Supreme Court:
“Participation in an organized criminal group may be expressed through joining the organized group, performing actions aimed at financing it, supplying it with weapons and transport, searching for targets, providing information, and so forth, as well as directly committing planned crimes.”
For a participant, the crime shall be considered completed from the moment of actual entry into the organized group or criminal organization, that is, from the moment when the person becomes aware of the criminal nature of the activities of the criminal group and gives consent to their participation (membership), regardless of whether they participated in the crimes committed.
Based on the requirements of Part 4 of Article 31 of the Criminal Code, the actions of a person who created a criminal group or led it shall be classified, respectively, under Part 1 of Article 262 of the Criminal Code, as well as under the relevant Articles of the Special Part of the Criminal Code providing for liability for crimes committed by the criminal group, provided that such crimes were covered by that person's intent. In this case, classification under the relevant Article of the Special Part of the Criminal Code shall be made with reference to Article 28 of the Criminal Code, except in cases where the organizer (leader) is simultaneously a co-perpetrator of the crime.
The actions of an organizer or leader of a criminal group who directly participated in the commission of crimes by the group shall not be additionally classified under Part 2 of Article 262 of the Criminal Code.
The actions of participants in a criminal group shall be classified under the relevant part of Article 262 of the Criminal Code, as well as under the relevant Articles of the Special Part of the Criminal Code for the crimes in the preparation or commission of which they participated.
A person who participated in crimes committed by a criminal group shall be held liable under Part 2 of Article 262 of the Criminal Code in cases where they were aware that they were an accomplice to a crime committed by a criminal group. If the person was unaware of the existence of the criminal formation, they shall be held liable only for the crime in which they participated.
When classifying crimes committed as part of a criminal group, the requirements of Part 1 of Article 13 of the Criminal Code must be strictly observed. According to this provision, where there is a concurrence of criminal offenses, a person shall bear criminal liability for each criminal offense committed under the relevant Article or part of an Article of the Criminal Code, unless the elements of the acts committed are covered by a provision of a single Article or part of an Article of the Criminal Code that provides for a more severe punishment.
Part 3 of Article 262 of the Criminal Code provides for increased liability for committing the listed acts through the use of one's official position, that is, by a person serving in either State organizations (for example, an employee of internal affairs bodies or a military servicemember) or non-State organizations or institutions (for example, an employee of private security services or security departments of various financial or commercial entities, and so forth).
Officials of various ranks and levels may take advantage of their official position to engage in such acts without any particular risk of being exposed, since, by virtue of their position, they have greater opportunities to conceal traces of criminal activity, legalize criminal proceeds, and so forth. This significantly increases the degree of public danger of the acts they commit, which has been taken into account by the legislator.
On the basis of the Note to Article 262 of the Criminal Code, a person who voluntarily terminates participation in a criminal group and actively contributes to the disclosure or prevention of crimes committed or being committed by the criminal group shall be released from criminal liability if their actions do not contain the elements of another crime.
The acts provided for in Parts 1 and 2 of Article 262 of the Criminal Code are classified as serious crimes.
The act provided for in Part 3 of Article 262 of the Criminal Code is classified as an especially serious crime.
Commentary of 2021 to 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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