Commentary on Article 286. Smuggling of Items Withdrawn from Circulation or Items Whose Circulation Is Restricted under the Criminal Code of the Republic of Kazakhstan
1. Movement across the customs border of the Eurasian Economic Union, bypassing or concealing goods from customs control, or through the fraudulent use of documents or means of customs identification, or involving non-declaration or inaccurate declaration, or the indication of knowingly inaccurate information in an application for the release of goods prior to the submission of a goods declaration, including the submission of invalid documents, forged documents and (or) documents containing knowingly inaccurate (false) information, as well as the illegal movement across the State Border of the Republic of Kazakhstan of narcotic drugs, psychotropic substances, their analogues, precursors, potent substances, poisonous substances, toxic substances, radioactive substances, radioactive waste or nuclear materials, explosives, armaments, military equipment, explosive devices, firearms, ammunition, nuclear, chemical, biological or other types of weapons of mass destruction, materials, equipment or components that may be used to create weapons of mass destruction, —
shall be punishable by a fine in an amount of up to five thousand monthly calculation indices, or corrective labor in the same amount, or restriction of liberty for a term of up to five years, or imprisonment for the same term, with or without confiscation of property.
2. The same acts committed:
1) repeatedly;
2) by an official through the abuse of his or her official position;
3) with the use of violence against a person exercising border or customs control;
4) by a group of persons pursuant to a prior conspiracy;
5) in respect of narcotic drugs, psychotropic substances, their analogues or precursors on a large scale, —
shall be punishable by imprisonment for a term of seven to twelve years, with confiscation of property.
3. The acts provided for in Parts One or Two of this Article, committed by a criminal group, —
shall be punishable by imprisonment for a term of ten to fifteen years, with confiscation of property.
4. The acts provided for in Parts One, Two or Three of this Article, involving narcotic drugs, psychotropic substances or their analogues, committed on an especially large scale, —
shall be punishable by imprisonment for a term of fifteen to twenty years or life imprisonment, with confiscation of property.
The public danger of the crime provided for in Article 286 of the Criminal Code of the Republic of Kazakhstan lies in the fact that the uncontrolled circulation of items withdrawn from circulation or items whose circulation is restricted entails a high degree of danger of causing harm to people, the environment, and the interests of society and the State.
As a result of violations of customs control, items prohibited from being marketed are imported into or exported from one State to another.
The object of the crime under consideration is the social relations ensuring security in the sphere of customs regulation, in particular, in the sphere of the established procedure for moving items withdrawn from circulation or items whose circulation is restricted across the customs border of the Eurasian Economic Union or the State Border of the Republic of Kazakhstan, that is, items in respect of which special rules for movement across the customs border of the Customs Union or the State Border of the Republic of Kazakhstan have been established. Additional objects may include social relations aimed at protecting human health and the established administrative order.
The subject matter of the crime under analysis consists of narcotic drugs, psychotropic substances, their analogues, precursors, potent substances, poisonous substances, toxic substances, radioactive substances, radioactive waste or nuclear materials, explosives, armaments, military equipment, explosive devices, firearms, ammunition, nuclear, chemical, biological or other types of weapons of mass destruction, materials, equipment or components that may be used to create weapons of mass destruction.
According to the Law of the Republic of Kazakhstan dated April 10, 1998, “On Narcotic Drugs, Psychotropic Substances, Their Analogues and Precursors and Measures to Counteract Their Illicit Trafficking and Abuse,” narcotic drugs are substances of synthetic or natural origin included in the List of Narcotic Drugs, Psychotropic Substances and Precursors Subject to Control in accordance with the legislation of the Republic of Kazakhstan and the Single Convention on Narcotic Drugs of 1961, as amended by the 1972 Protocol Amending the Single Convention on Narcotic Drugs of 1961 (subparagraph 3) of Article 1).
Psychotropic substances are substances of synthetic or natural origin included in the List of Narcotic Drugs, Psychotropic Substances and Precursors Subject to Control in accordance with the legislation of the Republic of Kazakhstan and international treaties of the Republic of Kazakhstan, including the Convention on Psychotropic Substances of 1971 (subparagraph 33) of Article 1).
Analogues of narcotic drugs and psychotropic substances are chemical substances not included in the List of Narcotic Drugs, Psychotropic Substances and Precursors Subject to Control in the Republic of Kazakhstan, the structural formulas of which are formed by replacing one or more hydrogen atoms, halogens and (or) hydroxyl groups in the structural formulas of narcotic drugs and psychotropic substances with their substituents (subparagraph 17-1) of Article 1).
Precursors are substances used in the production, manufacture and processing of narcotic drugs, psychotropic substances and their analogues, included in the List of Narcotic Drugs, Psychotropic Substances and Precursors Subject to Control in the Republic of Kazakhstan in accordance with the legislation of the Republic of Kazakhstan and international treaties of the Republic of Kazakhstan, including the 1988 United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (subparagraph 31) of Article 1).
Definitions of the concepts of “potent substances,” “poisonous substances” and “toxic substances” are currently absent from the legislation of Kazakhstan; accordingly, the characteristics of these concepts have not been defined at the legislative level.
Potent substances are substances that have an effect dangerous to human health and life when taken in significant doses or in the presence of medical contraindications to their use. They are capable of causing dependence and exerting a stimulating or depressant effect on the central nervous system, causing hallucinations or impairments of motor function, thinking, behavior, perception, etc. Potent substances are not narcotic drugs. Potent substances include, in particular, aminazine, clonidine, theofedrine and chloroform.
Poisonous substances are substances that have a toxic (poisonous) effect on the human body and are capable of causing death or harm to health even when consumed in small doses. Classification of a substance as poisonous requires a mandatory expert examination. The List of Poisons, the production, processing, acquisition, storage, sale, use and destruction of which are subject to licensing, is established by the Resolution of the Government of the Republic of Kazakhstan dated February 16, 2015, “On Approval of the List of Poisons, the Production, Processing, Acquisition, Storage, Sale, Use and Destruction of Which Are Subject to Licensing.” It includes medicinal products, as well as other synthetic and natural substances not authorized for use as medicinal products. The list of poisonous substances includes more than 130 names. These include methyl alcohol, bee venom, snake venom, certain mercury compounds, strychnine nitrate, phenol, sodium, potassium, copper, zinc, silver, cadmium, mercury, calcium and barium cyanides, chlorine, etc.
Toxic substances are highly toxic chemical compounds intended to affect humans or animals. They form the basis of chemical weapons. They belong to the group of toxic chemicals, which includes substances that, due to their chemical effects on life processes, can cause death, a temporary incapacitating effect (rendering a person incapable of functioning), or permanent harm to humans or animals. Toxic substances are capable of entering the body through the respiratory organs, skin and mucous membranes, as well as through the digestive tract.
In accordance with subparagraph 24) of Article 1 of the Law of the Republic of Kazakhstan dated January 12, 2016, “On the Use of Atomic Energy,” radioactive substances are any materials of natural or man-made origin, in any aggregate state, containing radionuclides. According to the Ecological Encyclopedic Dictionary, radionuclides are the general name for radioactive atoms that pose a significant danger to the environment. Some radionuclides are used in medicine and biological experiments.
In accordance with subparagraph 25) of Article 1 of the aforementioned Law, radioactive waste means radioactive substances, nuclear materials or radionuclide sources with radionuclide content above the exemption level, whose further use is not envisaged. A radionuclide source is a source of ionizing radiation containing radioactive substances, specially created for its beneficial application or constituting a by-product of a particular type of activity (subparagraph 26) of Article 1 of the aforementioned Law).
Nuclear materials are materials containing or capable of reproducing fissile (fissionable) radionuclides (subparagraph 34) of Article 1 of the aforementioned Law).
In accordance with subparagraph 1) of Article 70 of the Law of the Republic of Kazakhstan dated April 11, 2014, “On Civil Protection,” explosives are substances that, under certain types of external influence, are capable of undergoing a rapid self-propagating chemical transformation accompanied by the release of heat and the formation of gases. Explosives include TNT, nitroglycerin, pyroxylin, ammonite, plastic explosive, elastite, gunpowder, solid rocket fuel and other chemical substances and their mixtures capable of explosive reactions, the acquisition and storage of which require a special permit.
According to subparagraph 23) of Article 1 of the Law of the Republic of Kazakhstan “On Defense and the Armed Forces of the Republic of Kazakhstan,” armaments are various types of weapons, complexes and systems intended to destroy manpower, equipment and infrastructure facilities, destroy structures (fortifications), means simulating the aforementioned components, ammunition, as well as systems, devices, carriers and instruments ensuring their use in the Armed Forces, other troops and military formations. Armaments include combat equipment based on land, air, sea and river platforms, equipped with standard means of engaging targets, mining and demining, and ensuring its use for its intended purpose (optical instruments, radar and radio communication stations, etc.).
In accordance with the Law “On Defense and the Armed Forces of the Republic of Kazakhstan,” military equipment means combat vehicles, military ships (boats and other vessels), military aircraft and other aircraft with which the Armed Forces of the Republic of Kazakhstan, other troops and military formations are equipped (subparagraph 13) of Article 1).
According to paragraph 11 of the Normative Resolution of the Supreme Court of the Republic of Kazakhstan dated December 8, 2017, “On Certain Issues of Judicial Practice in the Application of Legislation on Terrorist and Extremist Crimes,” explosive devices should be understood as objects structurally designed to produce an explosion. Weapons, explosives or explosive devices may be either factory-produced or homemade.
An explosive device is a mechanism for detonating (initiating) ammunition under certain external influences or at a required moment. It consists of a target sensor, a detonator and the explosive charge itself. It detects the influence of the target (pressure, vibration, its magnetic, thermal or other field) or a signal from a control point and generates a signal for the actuator circuit that produces the explosion.
In accordance with subparagraph 1) of Article 1 of the Law of the Republic of Kazakhstan dated December 30, 1998, “On State Control over the Circulation of Certain Types of Weapons,” firearms are weapons in which a bullet, projectile or grenade is propelled from the barrel by the energy of a powder or other charge.
Ammunition (cartridges) means devices or objects structurally designed to be fired from weapons of the corresponding type and to hit a target (subparagraph 13) of Article 1 of the aforementioned Law).
In accordance with subparagraph 2) of Article 1 of the Law of the Republic of Kazakhstan dated July 21, 2007, “On Export Control,” nuclear weapons are classified as weapons of mass destruction. The operation of nuclear weapons is based on the release of a large amount of energy during a nuclear explosion in the form of a shock wave, light and ionizing radiation, as well as the formation of radioactive products of a nuclear explosion. The source of energy is either a nuclear fission reaction involving heavy nuclei (for example, uranium-233 or uranium-235, plutonium-239), or a thermonuclear fusion reaction involving light nuclei.
Chemical weapons, like nuclear weapons, are classified as weapons of mass destruction in accordance with the Law of the Republic of Kazakhstan “On Export Control.”
Chemical weapons are toxic substances and the means of their military application, whose damaging effect is based on the toxic properties of chemical substances and compounds which, when in a gaseous or liquid state, can enter the human body through the respiratory system, skin, mucous membranes or digestive tract. The action of chemical weapons is based on the toxic properties of toxic substances, and the means of their delivery include artillery shells, missiles, mines, aerial bombs, gas projectors, gas-cylinder release systems, aircraft spraying devices, grenades and smoke pots.
Similarly to nuclear and chemical weapons, biological weapons are classified as weapons of mass destruction in accordance with the Law of the Republic of Kazakhstan “On Export Control.”
Biological or bacteriological weapons are a type of weapon of mass destruction that uses various pathogenic microorganisms to destroy the enemy. The main purpose of their use is the mass destruction of enemy manpower, which is achieved by provoking epidemics of dangerous diseases among enemy troops and the civilian population. Biological weapons consist of pathogenic microorganisms or their spores, viruses, bacterial toxins, infected animals, as well as their delivery systems (missiles, guided projectiles, automatic balloons, aircraft), capable of causing mass diseases among humans, animals and plant life. The basis of their damaging effect is biological agents — bacteria, viruses, fungi and toxic products of their vital activity, used for military purposes with the aid of living infected disease carriers (insects, rodents, ticks) or in the form of suspensions and powders.
Other types of weapons of mass destruction include toxic, directed-energy, radio-frequency, infrasound, radiological and geophysical weapons.
Toxic weapons are a type of weapon whose damaging factor consists of protein or polypeptide substances that are products of the vital activity of certain microorganisms, animals and plants and are capable of causing the death of humans and animals. Toxic weapons are often regarded as a type of biological weapon. They differ from each other only in the nature of the damaging factor: in biological weapons, it is a living microorganism, whereas in toxic weapons, it is a metabolic product.
Directed-energy weapons (laser and accelerator weapons) are a type of directed-energy weapon based on the use of electromagnetic radiation from high-energy lasers. The damaging effect of laser weapons is determined mainly by the thermomechanical and shock-impulse impact of the laser beam on the target. One of its types is a combat laser cannon.
Radio-frequency weapons are a type of weapon whose damaging effect on humans is electromagnetic radiation. For this purpose, a super-high-frequency device resembling a short-barreled cannon has been developed. Studies have shown that even exposure to very low-intensity radiation causes various disturbances and changes in the body. For example, the negative effect of radio-frequency radiation on heart rhythm has been established, up to and including cardiac arrest. However, the greatest effect of using microwave devices is expected to be achieved through their impact on the enemy's radio-electronic networks. By switching on a powerful magnetron, an operator can easily disrupt the operation of any electronic systems even at a distance of 150 km. This makes it possible to paralyze airfields, missile launch positions, command centers and control points, navigation systems, and disable troop and weapons control systems.
Infrasound weapons are weapons that use sufficiently powerful infrasound as their means of inflicting damage. Depending on the intensity of the infrasound impact, the effects may range from a feeling of fear, terror or panic and psychoses arising therefrom to somatic disorders (from visual disturbances to damage to internal organs, including fatal outcomes).
Radiological weapons are weapons that use ionizing radiation from radioactive materials as their damaging element.
Geophysical weapons are weapons whose damaging effect is based on the military use of natural phenomena and processes artificially induced. Depending on the environment in which these processes occur, they are divided into atmospheric, lithospheric, hydrospheric, biospheric and ozone weapons.
Materials that may be used to create weapons of mass destruction include the corresponding raw materials and production technologies. For example, nuclear and special non-nuclear materials, technologies, sources of ionizing radiation and relevant dual-use (dual-purpose) goods and technologies; chemicals; disease pathogens, their genetically modified forms and fragments of genetic material that may be used in the creation of bacteriological (biological) and toxin weapons, etc.
Equipment intended for the production of weapons of mass destruction consists of installations, units, machine tools and other industrial and laboratory equipment suitable for achieving the aforementioned purpose.
Components that may be used in the creation of weapons of mass destruction are any elements or spare parts specifically designed for weapons of mass destruction and necessary for their functioning.
According to the Normative 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,” smuggling of items withdrawn from circulation or items whose circulation is restricted 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.
Accordingly, the objective side of the crime provided for in Article 286 of the Criminal Code of the Republic of Kazakhstan consists in moving across the customs border of the Eurasian Economic Union, bypassing or concealing goods from customs control, or through the fraudulent use of documents or means of customs identification, or involving non-declaration or inaccurate declaration, or the indication of knowingly inaccurate information in an application for the release of goods prior to the submission of a goods declaration, including the submission of invalid documents, forged documents and (or) documents containing knowingly inaccurate (false) information, as well as in the illegal movement across the State Border of the Republic of Kazakhstan of narcotic drugs, psychotropic substances, their analogues, precursors, potent substances, poisonous substances, toxic substances, radioactive substances, radioactive waste or nuclear materials, explosives, armaments, military equipment, explosive devices, firearms, ammunition, nuclear, chemical, biological or other types of weapons of mass destruction, materials, equipment or components that may be used to create weapons of mass destruction.
In accordance with 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 Eurasian Economic Union means 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.
According to the Normative 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,” importation and exportation should be understood as the movement of smuggled items by any means (transportation or dispatch by any type of transport, including by air, dispatch by mail, carrying in one's hands, in the pockets of clothing, as hand luggage, etc.).
In accordance with subparagraph 9) of paragraph 1 of Article 3 of the Code of the Republic of Kazakhstan “On Customs Regulation in the Republic of Kazakhstan,” the customs border of the Eurasian Economic Union is the limits of the customs territory of the Eurasian Economic Union, as well as, in accordance with international treaties within the framework of the Eurasian Economic Union, the limits of individual territories located within the territories of the member States of the Eurasian Economic Union.
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 of the Eurasian Economic Union, artificial islands, installations, structures and other facilities over which the member States of the Eurasian Economic Union exercise exclusive jurisdiction (subparagraph 8) of paragraph 1 of Article 3 of the aforementioned Code).
The Eurasian Economic Union is an international organization of regional economic integration possessing international legal personality and established by the Treaty on the Eurasian Economic Union. Within the EAEU, the free movement of goods, as well as services, capital and labor, and the implementation of coordinated, harmonized or common policies in economic sectors are ensured.
Customs control is a set of actions performed by customs authorities aimed at verifying and (or) ensuring compliance with the customs legislation of the Eurasian Economic Union and (or) the Republic of Kazakhstan (subparagraph 19) of paragraph 1 of Article 3 of the aforementioned Code).
The movement of smuggled items bypassing customs control consists in their dispatch and transportation outside customs posts, checkpoints and other places designated by the legislation and customs authorities of the Republic of Kazakhstan for customs declaration, or outside the established hours for carrying out such declaration (paragraph 5 of the Normative Resolution of the Supreme Court of the Republic of Kazakhstan “On the Practice of Applying Legislation on Criminal Liability for Smuggling”).
Concealment from customs control consists in hiding goods or other valuables and items, using caches during their transportation or other methods that make their detection difficult, or disguising certain items as other items.
The fraudulent use of customs and other documents or means of customs identification involves presenting to customs authorities, as well as to persons exercising border control, invalid documents, documents obtained unlawfully, forged documents, or documents containing false information; using forged seals, customs seals, stamps and other similar means of customs identification; or presenting an authentic means of identification relating to other objects.
Non-declaration or inaccurate declaration means the declaration by a declarant to a customs authority, using a customs declaration, of inaccurate information about goods (name, value, quantity, weight, etc.), the selected customs procedure and (or) other information necessary for customs purposes, or failure to fulfill the obligation to submit such a declaration containing the specified information about the goods when carrying out customs declaration.
The procedure for completing an application for the release of goods prior to the submission of a goods declaration, the form of the application for the release of goods prior to the submission of a goods declaration, and the procedure for registering or refusing to register such an application are established by Decision of the Board of the Eurasian Economic Commission dated December 13, 2017, “On the Application for the Release of Goods Prior to the Submission of a Goods Declaration.”
Knowingly inaccurate information is information that does not correspond to reality; some of this information may also correspond to reality, and it may include concealing certain facts or presenting information that previously corresponded to reality but subsequently lost its accuracy due to certain circumstances.
Within the framework of the Article under consideration, the word “provide” means to transfer (give) a document for examination.
A document is an official paper confirming a particular fact or right to something. In other words, it is information recorded on a tangible medium in the form of text, an audio recording or an image, with details enabling its identification; in other words, an information medium given written form and certifying the existence of facts of particular significance.
Invalid documents are forged documents, documents obtained unlawfully, documents containing inaccurate information, documents relating to other goods and (or) vehicles, and other documents that have no legal force. These may be entirely fabricated fictitious documents or authentic documents into which changes have been made by means of erasures, additions, corrections or destruction of part of the text, insertion of additional data, affixing the impression of a forged stamp or seal, etc.
A forged document is a document whose data do not correspond to reality. Forgery may be carried out in two ways: falsification and fabrication of an entirely counterfeit document. Falsification may be material, where amendments distorting the content of an authentic document are introduced (erasures, additions, insertions, chemical removal, correction of text, replacement of text with another text, alteration of the date or surname, forgery of a signature or seal impression, etc.), that is, changes are made to the original text of the authentic document; or intellectual, where false information is indicated in a document that is authentic in form and complies with the applicable requirements.
Material falsification is, as a rule, the work of knowledgeable persons who are familiar with document science, know the document protection system and understand the algorithm of document production. Intellectual falsification is characterized by the use of original seal and stamp dies that may, for example, have been stolen from an enterprise, the application of impressions to blank forms followed by the insertion of data, or the replacement of pages bearing the signatures of officials. If a document that is counterfeit in both form and content has been produced, this constitutes material-intellectual forgery.
It should be noted that the concepts of “knowingly false information” and “inaccurate information” cannot be regarded as identical. Knowingly false information is information that was initially inconsistent with reality, and the person providing it is aware of this. Such a person may prepare documents containing such information or engage other persons to do so. Knowingly inaccurate information is information that may partially correspond to reality; it may also involve concealing certain facts or information that previously corresponded to reality but subsequently lost its accuracy due to certain circumstances.
According to Article 1 of the Law of the Republic of Kazakhstan dated January 16, 2013, “On the State Border of the Republic of Kazakhstan,” the State Border of the Republic of Kazakhstan is a line and a vertical plane passing along it that define the limits of the territory of the Republic of Kazakhstan (land, waters, subsoil and airspace) and the spatial limits of the exercise of the state sovereignty of the Republic of Kazakhstan.
Illegal movement is carried out both at checkpoints and other places designated by law for crossing the border (under the guise of legal movement) and outside such places (by illegal means).
The elements of the crime provided for in Part 1 of Article 286 of the Criminal Code are, by their construction, formal. The moment at which the crime is completed is associated with the movement of the relevant items across the customs border of the Eurasian Economic Union or the State Border of the Republic of Kazakhstan.
When goods or other items are imported into the customs territory of the Eurasian Economic Union, smuggling committed through the fraudulent use of documents or means of customs identification, or involving non-declaration or inaccurate declaration, should be considered a completed crime from the moment the movement of goods or other items is stopped due to the discovery that their importation is being carried out by one of the aforementioned unlawful methods, including cases where this fact is discovered when the aforementioned documents are submitted to the customs authority during the customs transit procedure or the release of goods or other items.
In cases where, during the movement of goods or other items, fraudulent use of documents or means of customs identification, as well as instances of non-declaration, inaccurate declaration or concealment from customs control, have not been detected, the crime is considered completed from the moment the customs authorities make a decision to release the goods or other items; and, where no such decision is made due to the person's evasion of completion of the customs procedure, from the moment the criminally punishable actions aimed at actually removing the goods or other items from customs control are committed.
Smuggling committed when importing goods or other items into the customs territory of the Eurasian Economic Union or the Republic of Kazakhstan, bypassing customs control or concealing them from such control, should be considered a completed crime from the moment the goods or other items actually cross the customs border of the Eurasian Economic Union or the State Border of the Republic of Kazakhstan only in cases where this occurs outside checkpoints across the customs border of the Eurasian Economic Union or the State Border of the Republic of Kazakhstan and outside another place (corridor) established for the movement of goods to the place of arrival, if such place is located not on the border but within the customs territory.
Smuggling committed during the exportation of items from the customs territory of the Eurasian Economic Union should be considered a completed crime from the moment documents containing inaccurate information in an application for the release of goods prior to the submission of a goods declaration, including invalid documents, forged documents and (or) documents containing knowingly inaccurate (false) information, are submitted for the purpose of carrying out customs control.
Actions directly aimed at exporting items, in addition to filing a customs declaration, include other actions involving the aforementioned items before they actually cross the customs border (the entry or arrival of an individual departing from the Republic of Kazakhstan or another member State of the Eurasian Economic Union into the customs control zone; the entry of a motor vehicle into a checkpoint across the State Border of the Republic of Kazakhstan for the purpose of departing from the territory of the Republic of Kazakhstan; the delivery of goods to transport organizations or international postal items to postal service organizations for dispatch outside the customs territory; actions by a person directly aimed at the actual crossing of the customs border by goods and vehicles outside the places established in accordance with the legislation of the Eurasian Economic Union or the Republic of Kazakhstan).
Smuggling involving the illegal trafficking of narcotic drugs, psychotropic substances, their analogues, precursors, poisonous substances, armaments, military equipment, weapons of mass destruction, radioactive substances, radioactive waste or nuclear materials, weapons, ammunition, explosives or explosive devices is classified cumulatively with the crimes providing for liability for the commission of the aforementioned acts (Articles 275, 283, 287 and 301 of the Criminal Code).
The quantity of smuggled items is irrelevant for qualification, except in cases involving the illegal movement of narcotic drugs, psychotropic substances, their analogues and precursors. In respect of these items, the large or especially large scale of the movement is required.
The subjective side of the elements of the crime provided for in Part 1 of Article 286 of the Criminal Code is characterized by an intentional form of guilt in the form of direct intent, since the perpetrator is aware that he or she is illegally moving an item of smuggling across the customs border of the Eurasian Economic Union or the State Border of the Republic of Kazakhstan by the specified methods and desires to do so.
The subject of the crime under consideration is a sane natural person who has reached the age of 16.
The criminal law distinguishes between qualified and especially qualified forms of smuggling of items withdrawn from circulation or items whose circulation is restricted.
Part 2 of Article 286 of the Criminal Code provides for liability for a qualified form of this crime committed: 1) repeatedly; 2) by an official through the abuse of his or her official position; 3) with the use of violence against a person exercising border or customs control; 4) by a group of persons pursuant to a prior conspiracy; 5) in respect of narcotic drugs, psychotropic substances, their analogues or precursors on a large scale.
Repeated commission means the commission of two or more acts provided for in Article 286 of the Criminal Code of the Republic of Kazakhstan or a part thereof, provided that the person has not been convicted of the previously committed crime or released from criminal liability on grounds established by law.
According to paragraph 9 of the Normative Resolution of the Supreme Court of the Republic of Kazakhstan “On the Practice of Applying Legislation on Criminal Liability for Smuggling,” an official who has committed smuggling through the abuse of his or her official position should be understood as a person who, by virtue of his or her official duties, is required to exercise customs or border control, perform relevant actions to inspect 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 grant permission for crossing the border.
Smuggling committed by such officials through the abuse of their official position does not require additional qualification under articles of the criminal law concerning corruption-related and other criminal offenses against the interests of public service and public administration.
Other persons authorized to perform state functions or persons equated to them who commit smuggling through the abuse of their official position shall be held liable on general grounds, that is, cumulatively under the applicable provision of the criminal law concerning official criminal offenses and the relevant part of the Article of the Criminal Code on smuggling, without reference to this qualifying circumstance.
For the purposes of the Article under consideration, officials include persons who have the right to be present in customs and border control zones and to supervise the movement of cargo.
The actions of organizers, instigators and accomplices of smuggling committed by an official through the abuse of his or her official position are classified under the relevant part of Article 28 and subparagraph 2) of Part 2 of Article 286 of the Criminal Code.
If an official, without being the perpetrator of smuggling, participates in the commission of smuggling by other persons, his or her actions (inaction) are subject to qualification under the relevant parts of Articles 28 and 286 of the Criminal Code (depending on the type of complicity and the presence of qualifying circumstances), as well as under the relevant Articles of Chapter 15 of the Criminal Code, “Corruption-Related and Other Criminal Offenses against the Interests of Public Service and Public Administration,” if the act contains all the elements of any criminal offense provided for in that Chapter.
Subparagraph 3) of Part 2 of Article 286 of the Criminal Code establishes the use of violence against a person exercising border or customs control as a qualifying circumstance.
Violence should be understood as the infliction of beatings, causing minor, moderate or serious harm to health. Additional qualification under the relevant Articles of Chapter 1, “Criminal Offenses against the Person,” providing for liability for causing harm to health, is not required.
If the violence takes the form of the murder of a person exercising customs or border control, the act should be classified cumulatively under subparagraph 3) of Part 2 of Article 286 of the Criminal Code and subparagraph 2) of Part 2 of Article 99 of the Criminal Code.
Smuggling of items withdrawn from circulation or items whose circulation is restricted, committed by a group of persons pursuant to a prior conspiracy, is recognized as the commission of acts in which persons participated who had agreed in advance to jointly commit such a crime. For the qualification of smuggling committed by a group of persons pursuant to a prior conspiracy, it is necessary to establish the existence of a prior agreement to commit this crime.
Subparagraph 5) of Part 2 of Article 286 of the Criminal Code establishes the commission of an act involving narcotic drugs, psychotropic substances, their analogues or precursors on a large scale as a qualifying circumstance. The quantity of narcotic drugs, psychotropic substances, their analogues and precursors is determined in accordance with the Resolution of the Government of the Republic of Kazakhstan dated July 3, 2019, “On Approval of the List of Narcotic Drugs, Psychotropic Substances and Precursors Subject to Control in the Republic of Kazakhstan, the Consolidated Table for Classifying Narcotic Drugs, Psychotropic Substances, Their Analogues and Precursors Detected in Illicit Trafficking as Small, Large and Especially Large Quantities, and the List of Substituents of Hydrogen Atoms, Halogens and (or) Hydroxyl Groups in the Structural Formulas of Narcotic Drugs and Psychotropic Substances.”
Part 3 of Article 286 of the Criminal Code establishes the commission of smuggling of items withdrawn from circulation or items whose circulation is restricted by a criminal group as an especially qualifying circumstance.
Where smuggling is recognized as having been committed by a criminal group, the actions of all members of the criminal group are classified under Part 3 of Article 286 of the Criminal Code, and not only those of the persons who directly moved the smuggled items across the customs border of the Eurasian Economic Union or the State Border of the Republic of Kazakhstan (for example, the actions of members of a criminal group who acquired an item abroad for the purpose of importing it into the customs territory of the Eurasian Economic Union, assisted in its illegal movement at a customs or border checkpoint, falsified documents submitted during customs clearance of goods, or acted as transport forwarders of the smuggled cargo).
Where a person entitled to own and use the items specified in Article 286 of the Criminal Code within the customs territory of the Eurasian Economic Union actually carried out their movement across the customs border of the Eurasian Economic Union or the State Border of the Republic of Kazakhstan through a nominee (for example, through an unemployed person who was formally designated in the constituent documents as the head of an organization performing legally significant actions involving items subject to customs control), his or her actions should be classified under Article 286 of the Criminal Code as those of the perpetrator of this crime, while the actions of the other person, by virtue of Part 5 of Article 29 of the Criminal Code, should be classified as those of an accomplice, provided that the latter was aware that he or she was participating in the commission of smuggling and that his or her intent encompassed the commission of this crime.
Part 4 of Article 286 of the Criminal Code establishes the commission of an act involving narcotic drugs, psychotropic substances, their analogues or precursors on an especially large scale as an especially qualifying circumstance (see the commentary to subparagraph 5) of Part 2 of Article 286 of the Criminal Code).
A large or especially large quantity is characterized by the substantial amount, weight and volume of these substances, as well as their properties and degree of impact on the human body. In the case of illegal acts involving different types of narcotic drugs, psychotropic substances and their analogues, their quantity must be determined taking into account both the total amount and their cumulative effectiveness. A forensic expert examination is required to recognize the quantity of narcotic drugs, psychotropic substances and their analogues as large or especially large.
In accordance with Article 48 of the Criminal Code, items illegally moved across the customs border of the Eurasian Economic Union or the State Border of the Republic of Kazakhstan are subject to confiscation.
The crime provided for in Article 286 of the Criminal Code should be distinguished from the criminal offense provided for in Article 234 of the Criminal Code, “Economic Smuggling.” Thus, the object of the crime provided for in Article 286 of the Criminal Code of the Republic of Kazakhstan is public security in the sphere of customs regulation, in particular, in the sphere of the established procedure for moving items withdrawn from circulation or items whose circulation is restricted across the customs border of the Eurasian Economic Union or the State Border of the Republic of Kazakhstan. The object of the criminal offense provided for in Article 234 of the Criminal Code is social relations focused on economic security. At the same time, economic smuggling causes economic harm to the State, whereas smuggling of items withdrawn from circulation or items whose circulation is restricted causes harm to society.
Differences are also found in the subject matter of the crime. According to the Normative Resolution of the Supreme Court of the Republic of Kazakhstan “On the Practice of Applying Legislation on Criminal Liability for Smuggling,” items constituting the subject matter of smuggling are understood as any movable objects of the material world, including currency, currency valuables, electrical, thermal or other types of energy, and vehicles. These also include cultural valuables that constitute the artistic, scientific, historical and archaeological heritage of peoples — works of art, antiques and other items of the aforementioned significance; intellectual property objects; and species of animals and plants threatened with extinction, as well as their parts and derivatives. Liability for the illegal movement across the customs border of the Eurasian Economic Union of the aforementioned and other items not withdrawn from circulation or whose circulation is not restricted (for example, food products, clothing, footwear, perfumery products, etc.) is established by Article 234 of the Criminal Code.
The subject matter of smuggling of items withdrawn from circulation or items whose circulation is restricted consists exclusively of narcotic drugs, psychotropic substances, their analogues, precursors, potent substances, poisonous substances, toxic substances, radioactive substances, radioactive waste or nuclear materials, explosives, armaments, military equipment, explosive devices, firearms, ammunition, nuclear, chemical, biological or other types of weapons of mass destruction, materials, equipment or components that may be used to create weapons of mass destruction.
In economic smuggling, goods on a large scale are moved across the border, whereas in smuggling of items withdrawn from circulation or items whose circulation is restricted, the large-scale threshold is provided only in respect of narcotic drugs, psychotropic substances, their analogues and precursors.
Part 1 of Article 234 of the Criminal Code, “Economic Smuggling,” constitutes a criminal misdemeanor, whereas Part 1 of Article 286 of the Criminal Code, “Smuggling of Items Withdrawn from Circulation or Items Whose Circulation Is Restricted,” constitutes a crime.
The act provided for in Part 1 of Article 286 of the Criminal Code is classified as a crime of medium gravity.
The act provided for in Part 2 of Article 286 of the Criminal Code is classified as a serious crime.
The acts provided for in Parts 3 and 4 of Article 286 of the Criminal Code are classified as especially serious crimes.
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 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 Worker of the Ministry of Internal Affairs of the Republic of Kazakhstan.
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