Commentary on Article 264 of the Criminal Code of the Republic of Kazakhstan. Establishment and Leadership of a Transnational Organized Group or a Transnational Criminal Organization, as well as Participation Therein

1. Establishment of a transnational organized group or a transnational criminal organization, as well as leadership thereof or of a structural subdivision of a transnational criminal organization —

shall be punishable by deprivation of liberty for a term of ten to fifteen years, with confiscation of property.

2. Participation in a transnational organized group or a transnational criminal organization —

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

3. The acts provided for in Parts One or Two of this Article, committed by a person through the use of his or her official position —

shall be punishable by deprivation of liberty for a term of twelve to twenty years, with confiscation of property.

The process of the transnationalization of domestic organized crime began with the expansion of international legal cooperation between states and the establishment of economic, social and other relations between individuals and legal entities of foreign countries.

The public danger of the crime under consideration lies in the fact that the above factors have had and continue to have an impact on the development of both global and regional criminal markets.

The requirements for the separate criminalization of crimes committed by transnational organized crime arise from the provisions of the United Nations Convention against Transnational Organized Crime, signed in Palermo on December 13, 2000, and ratified by the Republic of Kazakhstan by Law dated June 4, 2008.

According to the Convention, the transnational nature of a crime is determined as follows:

— committed in more than one State;

— committed in one State, but a substantial part of its preparation, planning, direction or control takes place in another State;

— committed in one State, but involving an organized criminal group that engages in criminal activities in more than one State;

— committed in one State, but having substantial effects in another State.

According to the Convention, “...an organized criminal group shall mean a structured group of three or more persons, existing for a period of time and acting in concert with the aim of committing one or more serious crimes or offences established in accordance with this Convention, in order to obtain, directly or indirectly, a financial or other material benefit” (Article 2, subparagraph (a)).

In accordance with Article 5 of the said Convention: “1. Each State Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences, when committed intentionally:

(a) either or both of the following as criminal offences distinct from those involving the attempt or completion of the criminal activity:

(i) Agreeing with one or more other persons to commit a serious crime for a purpose relating directly or indirectly to the obtaining of a financial or other material benefit and, where required by domestic law, involving an act undertaken by one of the participants in furtherance of the agreement or involving an organized criminal group;

(ii) Conduct by a person who, with knowledge of either the aim and general criminal activity of an organized criminal group or its intention to commit the crimes in question, takes an active part in:

the criminal activities of the organized criminal group;

other activities of the organized criminal group in the knowledge that his or her participation will contribute to the achievement of the above-mentioned criminal aim;

(b) Organizing, directing, aiding, abetting, facilitating or counselling the commission of a serious crime involving an organized criminal group.

Knowledge, intent, purpose or agreement referred to in paragraph 1 of this article may be inferred from objective factual circumstances.

States Parties whose domestic law requires involvement of an organized criminal group for purposes of the offences established in accordance with paragraph 1 (a) (i) of this article shall ensure that their domestic law covers all serious crimes involving organized criminal groups. Such States Parties, as well as States Parties whose domestic law requires an act in furtherance of the agreement for purposes of the offences established in accordance with paragraph 1 (a) (i) of this article, shall so inform the Secretary-General of the United Nations at the time of their signature or when depositing their instrument of ratification, acceptance, approval or accession to this Convention.”

The object of the crime is public security.

The objective aspect of the crime is expressed in the establishment of a transnational organized group or a transnational criminal organization, as well as leadership thereof, and participation in a transnational organized group or a transnational criminal organization.

A transnational organized group is an organized group pursuing the aim of committing one or more criminal offences in the territory of two or more States, or in the territory of one State where the organization of the commission of the act or leadership of its execution takes place from the territory of another State, as well as where citizens of another State participate therein (paragraph 35) of Article 3 of the Criminal Code).

As with an organized group, a transnational organized group is characterized by such features and characteristics as stability, a consistent membership, close interconnections between its members, coordination of their actions, continuity of the forms and methods of criminal activity, and the duration of its existence.

A transnational criminal organization is a criminal organization pursuing the aim of committing one or more criminal offences in the territory of two or more States, or in the territory of one State where the organization of the commission of the act or leadership of its execution takes place from the territory of another State, as well as where citizens of another State participate therein (paragraph 34) of Article 3 of the Criminal Code).

The features of the objective aspect (establishment, leadership, participation) were previously examined in the commentary on Articles 262 and 263 of the Criminal Code.

By its legal structure, the corpus delicti is formal. The crime shall be considered completed from the moment of establishment of a transnational organized group or a transnational criminal organization, the actual exercise of leadership over such a group or organization, as well as from the moment of participation therein.

From the subjective aspect, the act is characterized by guilt in the form of direct intent, that is, the person is aware of the socially dangerous nature of his or her actions aimed at establishing or leading a transnational organized group or a transnational criminal organization, as well as participating in a criminal formation, foresees that socially dangerous consequences will result from such actions, and desires their occurrence.

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

Part 3 of Article 264 of the Criminal Code establishes liability for the commission of the acts listed in Parts 1 or 2 of this Article by a person through the use of his or her official position (see the commentary to Part 3 of Article 262 of the Criminal Code).

According to the Note to Article 262 of the Criminal Code, a person shall be exempted from criminal liability under Article 264 of the Criminal Code if:

• the person voluntarily ceases participation in the criminal group;
• the person actively assists in the disclosure or prevention of crimes committed or being committed by the criminal group;
• the person's actions do not contain the elements of another crime.

The acts provided for in Parts 1 and 3 of Article 264 of the Criminal Code are classified as especially grave crimes.

The act provided for in Part 2 of Article 264 of the Criminal Code is classified as a grave 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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