Commentary on Article 269-1. Unlawful Entry into a Protected Facility of the Criminal Code of the Republic of Kazakhstan

1. Unlawful entry into a facility protected in accordance with the legislation of the Republic of Kazakhstan by law enforcement or special state bodies, bodies and units of the Ministry of Defence of the Republic of Kazakhstan, the Armed Forces, other troops and military formations of the Republic of Kazakhstan, as well as into a hazardous production facility protected by a private security organisation, where such entry causes significant damage or substantial harm to the rights or legally protected interests of citizens or organisations, or to the legally protected interests of society or the State, —

shall be punishable by a fine in an amount of up to two hundred monthly calculation indices, or corrective labour in the same amount, or community service for a period of up to two hundred hours, or arrest for a period of up to fifty days.

2. The same act committed:

1) causing large-scale damage;

2) involving the use of violence or the threat of its use;

3) involving the use of weapons or objects used as weapons, explosives or explosive devices;

4) by a group of persons or a group of persons acting by prior conspiracy, —

shall be punishable by restriction of liberty for a term of up to five years or imprisonment for the same term.

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

1) resulting, through negligence, in the death of a person or other grave consequences;

2) committed by a criminal group, —

shall be punishable by imprisonment for a term of seven to ten years.

The public danger of the criminal offence provided for in Article 269-1 of the Criminal Code of the Republic of Kazakhstan (Part 1 — a criminal misdemeanour; Parts 2 and 3 — crimes) is expressed in the fact that this act infringes upon public security and creates risks of causing substantial harm to public relations protected by criminal law, including creating a threat to human life and health, as well as increasing the risk of terrorist acts and other crimes against public order and security.

The object of the criminal offence under consideration is public relations ensuring public security in the legally established sphere of the functioning of facilities protected by private or state security in accordance with the legislation of the Republic of Kazakhstan. An additional object is public relations ensuring the protection of life and health and the preservation of property.

The objective element of the criminal offence provided for in Article 269-1 of the Criminal Code consists in unlawful entry into a facility protected in accordance with the legislation of the Republic of Kazakhstan by law enforcement or special state bodies, bodies and units of the Ministry of Defence of the Republic of Kazakhstan, the Armed Forces, other troops and military formations of the Republic of Kazakhstan, as well as into a hazardous production facility protected by a private security organisation, resulting in significant damage or substantial harm to the rights or legally protected interests of citizens or organisations, or to the legally protected interests of society or the State.

To enter or penetrate means to get or make one's way inside somewhere, or to reach something. In the case of unlawful entry, the perpetrator must have no right to enter a particular place without the knowledge, permission or consent of authorised persons.

Pursuant to Article 1-3 of the Law of the Republic of Kazakhstan dated 3 October 1995, "On the State Security Service of the Republic of Kazakhstan", protected facilities are buildings, structures and installations intended for the presence of protected persons, as well as the territory and water area adjacent to them.

The list of facilities protected by the State Security Service of the Republic of Kazakhstan shall be approved by the Head of the State Security Service of the Republic of Kazakhstan in coordination with the Administration of the President of the Republic of Kazakhstan.

In accordance with Article 1-1 of the Law of the Republic of Kazakhstan dated 19 October 2000, "On Security Activities", facilities subject to state protection include particularly important state and strategic facilities; facilities belonging to sectors of the economy of strategic importance and owned by legal entities in whose authorised capital the State directly or indirectly holds a controlling block of shares (participatory interests).

The protection of facilities subject to state protection shall be carried out by state bodies, specialised security units of the internal affairs bodies, the Armed Forces of the Republic of Kazakhstan, other troops and military formations, as well as special state bodies.

The procedure for determining facilities subject to state protection shall be established by the Government of the Republic of Kazakhstan.

Lists of facilities subject to state protection shall be approved by the President or the Government of the Republic of Kazakhstan, within their respective powers.

The heads of facilities subject to state protection shall be obliged to ensure their engineering and technical reinforcement in accordance with the requirements determined by the Government of the Republic of Kazakhstan.

For the purpose of creating a competitive environment in the provision of security services, the protection of facilities not included in the lists of facilities subject to state protection may be carried out by private security organisations on the basis of agreements with individuals and legal entities in accordance with the legislation of the Republic of Kazakhstan.

The entities engaged in security activities include:

specialised security units of the internal affairs bodies of the Republic of Kazakhstan;

private security organisations (Article 7 of the said Law).

Specialised security units of the internal affairs bodies are state institutions and provide protection exclusively to the facilities specified in Article 1-1 of the Law "On Security Activities" (particularly important state and strategic facilities, and facilities belonging to sectors of the economy of strategic importance and owned by legal entities in whose authorised capital the State directly or indirectly holds a controlling block of shares (participatory interests)).

Specialised security units of the internal affairs bodies provide security services on a contractual basis to individuals included in the List determined by the Government of the Republic of Kazakhstan (Article 9 of the said Law).

According to Article 70 of the Law of the Republic of Kazakhstan dated 11 April 2014, "On Civil Protection", the characteristics of hazardous production facilities include:

the production, use, processing, formation, storage, transportation (by pipeline) or destruction of at least one of the following hazardous substances:

a source of ionising radiation;

a flammable substance — a gas that, at normal pressure and when mixed with air, becomes flammable and whose boiling point at normal pressure is 20 degrees Celsius or lower;

an explosive substance — a substance capable, under certain types of external impact, of undergoing a rapid self-propagating chemical transformation accompanied by the release of heat and the formation of gases;

a combustible substance — a liquid or gas capable of spontaneous combustion, as well as ignition from a source of ignition and independent continued combustion after the removal of such source;

an oxidising substance — a substance that supports combustion, causes ignition and/or promotes the ignition of other substances as a result of an exothermic oxidation-reduction reaction;

a toxic substance — a substance capable of causing the death of living organisms upon exposure and having the following characteristics:

an average lethal dose when administered orally ranging from 15 to 200 milligrams per kilogram of body weight, inclusive;

an average lethal dose when applied to the skin ranging from 50 to 400 milligrams per kilogram of body weight, inclusive;

an average lethal concentration in the air ranging from 0.5 to 2 milligrams per litre, inclusive;

a highly toxic substance — a substance capable of causing the death of living organisms upon exposure and having the following characteristics:

an average lethal dose when administered orally of no more than 15 milligrams per kilogram of body weight;

an average lethal dose when applied to the skin of no more than 50 milligrams per kilogram of body weight;

an average lethal concentration in the air of no more than 0.5 milligrams per litre;

a substance hazardous to the environment, including a substance characterised in an aquatic environment by the following indicators of acute toxicity:

an average lethal dose resulting from inhalation exposure of fish over a period of ninety-six hours of no more than 10 milligrams per litre;

an average concentration of poison causing a certain effect upon exposure to Daphnia for forty-eight hours of no more than 10 milligrams per litre;

an average inhibitory concentration upon exposure to algae for seventy-two hours of no more than 10 milligrams per litre;

the production of melts of ferrous, non-ferrous and precious metals and alloys based on these metals;

the conduct of mining, geological exploration, drilling and blasting operations, extraction of minerals and processing of mineral raw materials, and work in underground conditions, with the exception of geological exploration of common minerals and mining operations for their extraction without blasting operations.

Thus, hazardous production facilities include enterprises, production units and other facilities of such enterprises that possess the above characteristics and are identified as such in accordance with the Rules for the Identification of Hazardous Production Facilities approved by the authorised body in the field of industrial safety.

Hazardous production facilities also include hazardous technical devices:

technical devices operating under pressure exceeding 0.07 megapascals or at a water heating temperature exceeding 115 degrees Celsius, with the exception of heating networks;

lifting mechanisms, escalators, cableways, funiculars, lifts, moving walkways, as well as lifting devices for persons with disabilities;

steam and hot-water boilers operating under pressure exceeding 0.07 megapascals and/or at a water heating temperature exceeding 115 degrees Celsius (heat supply organisations), pressure vessels operating under pressure exceeding 0.07 megapascals, lifting mechanisms, escalators, cableways, funiculars, lifts, moving walkways, as well as lifting devices for persons with disabilities at social infrastructure facilities;

drilling and well-repair installations with a drilling depth exceeding two hundred metres, operated at hazardous production facilities;

mine hoisting installations and hoisting machines;

mobile storage facilities for explosives and products based on them, mixing-and-charging and delivery-and-charging machines, mobile and stationary installations for the manufacture of explosives and products based on them (Article 71 of the said Law).

In accordance with Paragraph 1 of Article 10 of the Law of the Republic of Kazakhstan "On Security Activities", a private security organisation is a commercial organisation providing security services as its business activity.

The corpus delicti of the criminal offence provided for in Part 1 of Article 269-1 of the Criminal Code is, by its structure, a material offence. The objective element of this act includes three mandatory features: firstly, a socially dangerous act consisting in unlawful entry into a facility protected in accordance with the legislation of the Republic of Kazakhstan by law enforcement or special state bodies, as well as into a hazardous production facility protected by a private security organisation; secondly, socially dangerous consequences expressed in causing significant damage or other substantial harm to an individual, organisation or the State; and, thirdly, a causal relationship between the unlawful act and the consequences specified in the law. Accordingly, the act is considered completed from the moment the socially dangerous consequences specified in the disposition occur.

In accordance with Subparagraph 2) of Article 3 of the Criminal Code of the Republic of Kazakhstan, significant damage is damage in an amount exceeding two hundred times the monthly calculation index.

In accordance with Subparagraph 14) of Article 3 of the Criminal Code of the Republic of Kazakhstan, substantial harm means a violation of the constitutional rights and freedoms of a person and citizen, the rights and legitimate interests of organisations, and the legally protected interests of society and the State; the infliction of significant damage; the occurrence of a difficult life situation for the victim; disruption of the normal functioning of organisations or state bodies; disruption of important military activities or a short-term reduction in the level of combat readiness and combat capability of military units and subdivisions; failure to detect or repel in a timely manner an attack by armed groups or individual armed persons, land, air or naval combat equipment; allowing the unhindered unlawful crossing of the State Border of the Republic of Kazakhstan by persons and vehicles, the movement of smuggled cargo, or actions causing damage to border installations; and other consequences indicating the substantial nature of the harm caused.

The infliction of substantial harm is an evaluative category determined by the investigative authorities, taking into account the actual circumstances of the act committed. Such harm may be caused to both individuals and legal entities. At the same time, the legality of the perpetrator's actions may also be challenged in the interests of third parties.

Depending on the nature of the unlawful consequences, substantial harm may be recognised as property damage in the form of direct actual loss or lost profit, violation of the legitimate rights and interests of citizens or organisations, or the legally protected interests of society or the State, expressed in the infliction of significant material damage, violation of citizens' constitutional rights to freedom of movement, and so forth.

In the absence of significant damage or other substantial harm to an individual, organisation or the State as a consequence of unlawful entry into a facility protected in accordance with the legislation of the Republic of Kazakhstan by law enforcement or special state bodies, or into a hazardous production facility protected by a private security organisation, the person shall be subject to administrative liability under Article 506 of the Code of Administrative Offences of the Republic of Kazakhstan, "Unlawful Entry into Protected Facilities".

For example, an administrative case concerning S. was considered by the specialised inter-district administrative court. In that case, S. unlawfully entered a protected facility — CHP-2. However, since the unlawful entry into the protected facility did not result in significant damage and did not cause substantial harm to anyone, S. was reasonably held administratively liable.

The disposition of this corpus delicti does not contain such features of the objective element as the time, place, method, circumstances, instruments or means of committing the criminal offence. Consequently, when qualifying a criminal offence under Article 269-1, the above-mentioned features shall not be relevant; however, they should be taken into account when imposing punishment.

In order to hold a person criminally liable under Article 269-1 of the Criminal Code of the Republic of Kazakhstan, it is necessary to establish a causal relationship between the unlawful entry into a facility protected in accordance with the legislation of the Republic of Kazakhstan by law enforcement or special state bodies, or into a hazardous production facility protected by a private security organisation, and the socially dangerous consequences that have occurred.

The subjective element of the corpus delicti provided for in Article 269-1 is characterised by an intentional form of guilt. In this regard, intent may be either direct or indirect. The perpetrator is aware of the socially dangerous nature of the unlawful entry into a protected facility, foresees the possibility or inevitability of causing significant damage or substantial harm to the rights or legally protected interests of citizens or organisations, or to the legally protected interests of society or the State, and desires such consequences or consciously allows them to occur, or is indifferent to their occurrence.

The subject of the criminal offence under consideration may be any sane natural person who has reached the age of sixteen.

Criminal law also distinguishes between qualified and particularly qualified forms of unlawful entry into a facility protected in accordance with the legislation of the Republic of Kazakhstan by law enforcement or special state bodies, or into a hazardous production facility protected by a private security organisation.

Thus, Subparagraph 1) of Part 2 of Article 269-1 of the Criminal Code provides for the infliction of large-scale damage as a qualifying circumstance. In accordance with Subparagraph 38) of Article 3 of the Criminal Code, large-scale damage means damage in an amount exceeding one thousand monthly calculation indices.

Subparagraph 2) of Part 2 of Article 269-1 provides for liability for the same acts committed through the use of violence or the threat of its use as a qualifying circumstance.

Violence should be understood as any physical violence that is not life-threatening and does not result in the infliction of grievous bodily harm. Intentional infliction of bodily harm of moderate or minor severity, battery and torture are covered by the disposition of Subparagraph 2) of Part 2 of Article 269-1 of the Criminal Code and do not require additional qualification.

A threat to use violence means statements, intimidation or other actions by the perpetrator expressing a genuine intention to use violence (cause death or bodily harm). In this regard, the victim must perceive the threat as real.

For the purposes of qualifying the act, it is irrelevant whether the perpetrator intended to carry out the threat. Any form of threat to use violence is covered by Subparagraph 2) of Part 2 of Article 269-1 of the Criminal Code and does not require additional qualification under Article 115 of the Criminal Code of the Republic of Kazakhstan, which provides for criminal liability for making threats.

Subparagraph 3) of Part 2 of Article 269-1 of the Criminal Code provides for unlawful entry into a protected facility using weapons or objects used as weapons as a qualifying circumstance.

The use of weapons means the actual use of weapons or objects used as weapons in accordance with their specific purpose, namely, to cause harm to human life and health. The use of weapons presupposes only the use of their damaging properties (for example, if, during unlawful entry into a protected facility, blows are inflicted with the butt of a weapon, it should be regarded as an object used to cause bodily harm rather than as a weapon).

If, in the course of unlawful entry into a protected facility, the perpetrator uses a weapon that is knowingly unserviceable or unloaded, or another object that merely imitates a weapon (a pistol replica, toy knife or knuckle-duster, and others), the perpetrator's actions cannot be qualified under Subparagraph 3) of Part 2 of Article 269-1 of the Criminal Code, regardless of how the victim perceived such an object.

A verbal threat, as well as the display of weapons or other objects during unlawful entry into a protected facility, is covered by the disposition of Part 1 of Article 269-1 and cannot be qualified as unlawful entry into a protected facility committed through the use of such weapons or other objects, since such actions do not yet constitute the use (employment) of weapons or other objects and, consequently, do not create a real threat to the life and health of citizens.

Subparagraph 4) of Part 2 of Article 269-1 provides for the commission of the act by a group of persons or by a group of persons acting by prior conspiracy as a qualifying circumstance.

When a crime is committed by several persons, it is necessary to establish the degree of participation of each accomplice, determine whether there was a prior conspiracy between them, whether roles were distributed, as well as establish all other circumstances on the basis of which a conclusion may be drawn that the act was committed by a group of persons or by a group of persons acting by prior conspiracy, determine the degree of participation of each person brought to liability, individually qualify their actions and impose a fair punishment.

An act is recognised as having been committed by a group of persons if it is committed through the joint actions of two or more perpetrators of the crime who acted without prior conspiracy.

An act is recognised as having been committed by a group of persons acting by prior conspiracy if persons who had previously agreed to commit a criminal offence jointly participated in it. In order to qualify unlawful entry into a protected facility as having been committed by a group of persons acting by prior conspiracy, it is necessary, firstly, to establish the existence of a prior agreement to commit unlawful entry into the protected facility and, secondly, to establish that at least two members of such a group acted as co-perpetrators.

Subparagraph 1) of Part 3 of Article 269-1 provides for the commission of an act resulting, through negligence, in the death of a person or other grave consequences as a particularly qualifying circumstance.

According to Article 153 of the Code of the Republic of Kazakhstan dated 7 July 2020, "On Public Health and the Healthcare System", biological death is the cessation of the vital functions of an organism, in which vital functions have irreversibly ceased.

According to Subparagraph 4) of Article 3 of the Criminal Code of the Republic of Kazakhstan, grave consequences include: the death of a person; the death of two or more persons; suicide by the victim or the victim's close relative(s); the infliction of grievous bodily harm; the infliction of grievous bodily harm on two or more persons; mass illness, infection, irradiation or poisoning of people; deterioration of public health and the environment; an unwanted pregnancy; the occurrence of a technological or environmental disaster or an environmental emergency; the infliction of large-scale or particularly large-scale damage; disruption of the fulfilment of tasks assigned by the highest command; creation of a threat to state security, a catastrophe or an accident; a prolonged reduction in the level of combat readiness and combat capability of military units and subdivisions; failure to accomplish a combat mission; disabling of military equipment; and other consequences indicating the gravity of the harm caused.

The act provided for in Subparagraph 1) of Part 3 of Article 269-1 is also characterised by an intentional form of guilt. However, in the act under consideration, the intentional form of guilt may relate only to the fact of unlawful entry into a facility protected in accordance with the legislation of the Republic of Kazakhstan by law enforcement or special state bodies, or into a hazardous production facility protected by a private security organisation. The perpetrator's mental attitude towards the consequences in the form of a person's death or other grave consequences must be expressed in a negligent form of guilt. If the perpetrator acts with intent in relation to such consequences, the actions of the guilty person must be qualified cumulatively as unlawful entry into a facility protected in accordance with the legislation of the Republic of Kazakhstan by law enforcement or special state bodies, or into a hazardous production facility protected by a private security organisation, and the relevant criminal offence, for example, under Article 106 of the Criminal Code, "Intentional Infliction of Grievous Bodily Harm".

The definition of a criminal group is provided in Subparagraph 24) of Article 3 and Part 3 of Article 31 of the Criminal Code of the Republic of Kazakhstan.

The act provided for in Part 1 of Article 269-1 of the Criminal Code of the Republic of Kazakhstan is classified as a criminal misdemeanour.

The act provided for in Part 2 of Article 269-1 of the Criminal Code of the Republic of Kazakhstan is classified as a crime of medium gravity.

The act provided for in Part 3 of Article 269-1 of the Criminal Code of the Republic of Kazakhstan is classified as a serious crime.

Commentary of 2021 on the Criminal Code of the Republic of Kazakhstan, by Isidor Shamilovich Borchashvili, Honoured 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, Honoured Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.

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