It is not a criminal offense for authorized agency officers to conduct covert investigative actions

Article 35 of the Criminal Code of the Republic of Kazakhstan (CC RK) establishes the grounds for exemption from criminal liability for acts committed in the course of operational-search, counterintelligence measures, or covert investigative actions. Below is a detailed legal commentary with analysis, examples from practice, and references to related articles of other codes and regulatory resolutions.

📘 General Provisions

According to Article 35 of the CC RK, causing harm to legally protected interests is not a criminal offense if it is committed under the following conditions:

1. Subjects: by an officer of an authorized state body or, upon instruction of such a body, by another person cooperating with it.
2. Purpose: the prevention, detection, solving, or investigation of criminal offenses committed by a group of persons, by a group with prior conspiracy, or by a criminal organization; the prevention, uncovering, and suppression of intelligence and/or subversive activities.
3. Conditions: the harm caused is less significant than the harm that would have been caused by the said criminal offenses; prevention, detection, or investigation could not have been achieved by other means.

However, the provisions of the first part do not extend to acts associated with a threat to human life or health, ecological disaster, public calamity, or other grave consequences.

⚖️ Conditions of Legitimacy

For an act committed during operational-search measures (OSM) to be recognized as a circumstance excluding criminality, the following conditions must be observed:

1. Subject: the act is committed by an officer of an authorized state body or by another person cooperating with such a body upon its instruction.
2. Purpose: the act is aimed at preventing, detecting, solving, or investigating criminal offenses committed by a group of persons, a group with prior conspiracy, or a criminal organization; or at preventing, uncovering, and suppressing intelligence and/or subversive activities.
3. Necessity: prevention, detection, or investigation could not have been achieved by other means.
4. Proportionality: the harm caused is less significant than the harm that would have been caused by the said criminal offenses.
5. Absence of grave consequences: the act is not associated with a threat to human life or health, ecological disaster, public calamity, or other serious consequences.

🧾 Judicial Practice

In the practice of the courts of the Republic of Kazakhstan, when considering cases related to the conduct of OSM, special attention is paid to determining the existence of all conditions for the legality of such actions. The courts analyze whether the legal requirements were observed in the conduct of OSM, whether the permissible limits of interference in citizens’ rights and freedoms were exceeded, and whether the harm caused was proportionate to the harm prevented. (Law and Justice Almaty)

📚 Related Legal Acts

· Law of the Republic of Kazakhstan dated September 15, 1994 No. 154-XIII "On Operational-Search Activity": defines the legal framework, tasks, principles, and procedures for carrying out OSM.

· Criminal Procedure Code of the Republic of Kazakhstan (CPC RK): regulates the procedure for conducting covert investigative actions and the use of their results in criminal proceedings.

· Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated December 22, 2022 No. 10: clarifies issues related to the evaluation of evidence obtained during OSM. (Law and Justice Almaty)

🧠 Conclusion

Article 35 of the CC RK provides the legal basis for exemption from criminal liability for acts committed during OSM, provided certain conditions are met. The proper application of this provision requires careful analysis of all the circumstances of the case to establish the legality of the actions of authorized body officers or other persons cooperating with them.

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