On the review of Article 197 of the Criminal Code of the Republic of Kazakhstan dated July 3, 2014 for compliance with the Constitution of the Republic of Kazakhstan
Regulatory Resolution of the Constitutional Court of the Republic of Kazakhstan dated May 18, 2023 No. 14-NP
The Constitutional Court of the Republic of Kazakhstan, composed of Chairman Azimova E.A., judges Eskendirov A.K., Zhakipbaev K.T., Zhatkanbayeva A.E., Kydyrbaeva A.K., Musin K.S., Nurmukhanova B.M., Ongarbaev E.A., Podoprigora R.A., Sarsembaev E.J. and Udartseva S.F., with the participation of representatives:
The subject of the appeal is lawyer D.P. Kuryachenko.,
Financial Monitoring Agency of the Republic of Kazakhstan – Deputy Chairman J.F. Yelemesov.,
Ministry of Internal Affairs of the Republic of Kazakhstan – Deputy Minister K.I. Suntaev.,
Ministry of Justice of the Republic of Kazakhstan – Vice Minister Mukanova A.K.,
Ministry of Finance of the Republic of Kazakhstan – Deputy Chairman of the State Revenue Committee K.I. Miyatov.,
Ministry of Energy of the Republic of Kazakhstan – Director of the Department of Oil Transportation and Refining Mergenov S.K.,
The Prosecutor General's Office of the Republic of Kazakhstan – Advisor to the Prosecutor General Adamova T.B.,
The expert is K.Zh. Baltabaev, Doctor of Law, Professor at the L.N. Gumilyov Eurasian National University.,
In an open meeting, I considered the appeal of Yerzhan Khayrollaevich Shamiev on checking for compliance with the Constitution of the Republic of Kazakhstan, Article 197 of the Criminal Code of the Republic of Kazakhstan dated July 3, 2014 (hereinafter referred to as the Criminal Code).
Having heard the report of the speaker, Judge of the Constitutional Court of the Republic of Kazakhstan Ongarbayev E.A., having studied the materials of the constitutional proceedings, having analyzed international experience, legislation of the Republic of Kazakhstan and individual foreign countries, the Constitutional Court of the Republic of Kazakhstan
installed:
The Constitutional Court of the Republic of Kazakhstan received an appeal from Shamiev E.H. with a request to recognize Article 197 of the Criminal Code as inconsistent with paragraph 1 of Article 1, paragraphs 1-4 of Article 12, articles 13, 14, paragraph 1 of Article 16, articles 17, 18, 21, paragraphs 1 and 2 of Article 24, Article 26, paragraphs 1 and 2 of Article 27, paragraphs 1 and 3 of Article 29, paragraphs 1, 2 and 4 of Article 33 and Article 39 of the Constitution of the Republic of Kazakhstan.
By the verdict of court No. 2 of the city of Pavlodar dated April 19, 2022, left unchanged by the decision of the judicial Board for Criminal Cases of the Pavlodar Regional Court dated August 3, 2022, E. Shamiev was found guilty of committing a crime under paragraph 2) of the fourth part of Article 197 of the Criminal Code, with the imposition of punishment in the form of imprisonment with confiscation of property.
In accordance with the contested norm of the Criminal Code, a person is criminally liable for transportation, purchase, sale, storage of oil and petroleum products, as well as oil refining without documents confirming the legality of their origin.
It follows from the appeal that the legislation of Kazakhstan does not disclose the concept of a document confirming the legality of the origin of oil and petroleum products. Its form, content, and procedure for approval and issuance are missing. The documents seized by law enforcement officers are used in the usual business turnover of petroleum products (accompanying invoices, invoices for the transfer of stocks to the side, and others) and act as documents confirming the legality of transportation, purchase, sale, and storage of oil and petroleum products, but not their legitimate origin. In addition, despite the fact that article 197 of the Criminal Code is located in the chapter "Criminal offenses against property", there are no victims who are owners in criminal cases under this article.
When verifying the constitutionality of the norm in question in the Criminal Code in relation to the subject of the appeal, the Constitutional Court proceeds from the following.
In accordance with paragraph 1 of article 34 of the Constitution, everyone is obliged to comply with the Constitution and legislation of the Republic of Kazakhstan, to respect the rights, freedoms, honor and dignity of others. The establishment of this duty for everyone is a necessary tool for protecting the constitutional order, public order, the fulfillment by the state of its socio-economic, political and other functions, and ensuring the rule of law.
Violation of the norms of the Constitution and legislation of the Republic of Kazakhstan, depending on the nature and severity of the committed act, entails legal liability with the imposition of certain deprivations and restrictions of a personal or property nature.
The grounds and limits of restrictions on human rights and their nature follow from the norm of paragraph 1 of Article 39 of the Constitution, according to which "human rights and freedoms may be restricted only by laws and only to the extent necessary to protect the constitutional order, public order, human rights and freedoms, public health and morals".
The Constitutional Council of the Republic of Kazakhstan, in a number of its normative resolutions, gave an official interpretation to paragraph 1 of Article 39 of the Constitution in the context of the subject of various appeals (No. 11/2 dated July 9, 2001, No. 8 dated June 10, 2003, No. 4 dated July 1, 2005, No. 5 dated May 28, 2007).
Paragraph 2 of article 29 of the Universal Declaration of Human Rights, adopted by resolution 217 A (III) of the United Nations General Assembly on December 10, 1948, states that in exercising their rights and freedoms, everyone should be subject only to such restrictions as are established by law solely for the purpose of ensuring due recognition and respect for the rights and freedoms of others. and meeting the just demands of morality, public order and the general welfare in a democratic society.
A criminal law adopted by Parliament in accordance with subparagraph 1) Paragraph 3 of Article 61 of the Basic Law establishes responsibility for the most serious encroachments on values and objects protected by the Constitution, and restricts the rights and freedoms of citizens to the greatest extent.
When criminalizing certain acts, the legislator primarily proceeds from the degree of their public danger. In addition, the social and economic prerequisites and consequences of the adopted laws aimed at combating crime are taken into account.
The Constitutional Court believes that when resolving issues related to the criminalization of illegal behavior, the dispositions of the norms of the criminal law must clearly comply with the requirements of certainty of legal regulations and their consistency in the general system of legal regulation. Therefore, any criminal offense and the punishment imposed for it must be provided in such a way that everyone can foresee the criminal consequences of their actions (inaction). In the normative resolution of the Constitutional Council of February 27, 2008 No. 2, it was noted that the law restricting the rights and freedoms of man and citizen should be formulated very clearly, clearly indicate both the signs of an offense and the constitutional goals for which it was adopted, preventing the possibility of ambiguous interpretation.
The criminalization of actions involving the transportation, purchase, sale, storage of oil and petroleum products, as well as the processing of oil without documents confirming the legality of their origin, was due to the need to counter the increasing volume of the shadow economy and illicit trafficking in oil and petroleum products (Article 197 of the Criminal Code). The state, taking measures to regulate the production and turnover of certain types of petroleum products as strategically important energy carriers, aims to ensure the economic security of the country, as well as meeting the needs of the population.
The legal analysis of article 197 of the Criminal Code indicates the need to focus on certain shortcomings that lead to an ambiguous understanding and, consequently, the application of the norms of the criminal law.
The complexity and uncertainty of the construction of article 197 of the Criminal Code cause problems in law enforcement practice. The legislator combined two subjects of a criminal offense (oil and petroleum products) and several actions common to them (transportation, purchase, sale, storage), singling out a separate punishable action related to oil – its processing.
The criminalizing feature of these actions is the absence of documents confirming the legality of the origin of oil and petroleum products.
The lack of an accurate and clear legislative definition of which document acts as a confirmation of the legality of the origin of oil or petroleum products creates prerequisites for a broad interpretation by a law enforcement officer and can potentially lead to a violation of the constitutional rights and freedoms of citizens.
An analysis of the current legislation shows that certain requirements for documents related to the turnover of oil and petroleum products have been established, albeit to an insufficient extent.
Thus, the Law of the Republic of Kazakhstan dated July 20, 2011 "On State regulation of production and turnover of certain types of petroleum products" (hereinafter referred to as the Law dated July 20, 2011) uses the concept of "document confirming origin" only in relation to the obligation of producers of petroleum products to purchase, accept for processing crude oil, gas condensate, refined products, if available suppliers of such documents (subparagraph 10) of paragraph 1 of Article 12).
By Order No. 257 of the Deputy Prime Minister - Minister of Industry and New Technologies of the Republic of Kazakhstan dated July 8, 2014, the List of documents confirming the origin of the goods (hereinafter referred to as the List) was approved. This List is formed in accordance with subparagraph 8) of Article 14 of the Law of the Republic of Kazakhstan dated July 4, 2013 "On the National Chamber of Entrepreneurs of the Republic of Kazakhstan" and is aimed at implementing the functions of the National Chamber in the field of development of foreign economic activity of business entities. The National Chamber issues a certificate of origin in order to confirm the country of origin of the goods, rather than the legality of their origin.
The Law of July 20, 2011 does not impose on wholesale suppliers and retail sellers the obligation to have documents confirming the legality of their origin during the turnover of petroleum products.
According to subparagraph 28) of Article 1 of the Law of July 20, 2011, the accompanying consignment note for goods is a document that is intended to control the turnover of petroleum products and is necessary for processing operations for the release and reception of petroleum products, as well as operations for the transfer of petroleum products to oil suppliers.
By Order No. 1424 of the First Deputy Prime Minister - Minister of Finance of the Republic of Kazakhstan dated December 26, 2019, the List of goods subject to the obligation to issue accompanying invoices for goods, as well as the Rules for issuing accompanying invoices for goods and their document management, was approved.
Law enforcement practice shows that when considering the issue of liability under article 197 of the Criminal Code, the pre-trial investigation authorities and the courts deal with the issues of confirming the legality of the origin of oil and petroleum products in different ways.
Participants in the constitutional proceedings note that when conducting criminal prosecution under the article of the Criminal Code in question, contracts, accompanying invoices, invoices and other documents provided by entrepreneurs and carriers are taken into account.
The Constitutional Court believes that the disposition of the composition of the criminal offense provided for in Article 197 of the Criminal Code refers to documents confirming the legality of certain actions related to the turnover of oil and petroleum products. The absence of such documents is a key condition for bringing a person to criminal responsibility.
When assessing the constitutionality of the contested article of the Criminal Code, other shortcomings were also identified. Certain actions of the objective side of Article 197 of the Criminal Code are in competition with other structures provided for in this Code (subparagraph 1) of the third part of Article 196) and the Code of Administrative Offences of the Republic of Kazakhstan dated July 5, 2014 (fifth part of Article 283-1).
The Constitutional Court considers that the correct definition of the object of a socially dangerous encroachment is of great practical importance, since it helps to distinguish illegal behavior, for which criminal liability is provided, from lawful, as well as the correct qualification of acts.
From the explanations of representatives of state bodies given during the constitutional proceedings, it follows that in fact the object of this type of criminal offense is public relations in the field of economic activity, while article 197 of the Criminal Code is in chapter 6 "Criminal offenses against property."
The generic object of criminal offenses against property is public relations related to the institution of property. However, the disposition of article 197 of the Criminal Code does not directly address the task of criminal law protection of property rights. In addition, when committing the acts provided for in this article, harm to the owner or other owner of oil or petroleum products may not be caused.
The first and second parts of Article 197 of the Criminal Code contain signs of criminal offenses. At the same time, the legislator has not set a threshold for criminalizing these acts. Consequently, criminal liability for transportation, purchase, sale, storage of oil and petroleum products, as well as oil refining without documents confirming the legality of their origin, may also occur when these acts are committed with a small amount of oil or petroleum products.
Such an approach to determining the signs of a criminal offense, which is the only basis for criminal liability, allows a law enforcement officer to broadly interpret these signs and may lead to infringement of human rights and freedoms enshrined in the Constitution.
In this regard, the threshold values, which are criteria for classifying an act as criminally punishable, should be established by analogy with other similar criminal offenses.
The Constitutional Court considers that with regard to the legislative regulation of measures of criminal legal impact, in general, it should be assumed that the norms of the criminal law should meet the requirements of clarity, certainty and unambiguity to the greatest extent, and when presented in a blank form, their elements should be clearly disclosed in the relevant normative legal acts. Legal certainty is a guarantee of respect for constitutional human rights and freedoms and their protection from arbitrary interference by government agencies.
Based on the above, guided by paragraph 3 of Article 72 and paragraph 3 of Article 74 of the Constitution of the Republic of Kazakhstan, subparagraph 3) paragraph 4 of article 23, articles 55-58, 62, paragraphs 3 and 4 of article 63, paragraph 4 of Article 64 and subparagraph 2) Paragraph 1 of Article 65 of the Constitutional Law of the Republic of Kazakhstan dated November 5, 2022 "On the Constitutional Court of the Republic of Kazakhstan", the Constitutional Court of the Republic of Kazakhstan
Decides:
To recognize Article 197 of the Criminal Code of the Republic of Kazakhstan as corresponding to the Constitution of the Republic of Kazakhstan in the interpretation given by the Constitutional Court:
when bringing a person to criminal responsibility for the transportation, purchase, sale, storage of oil and petroleum products, as well as oil refining, documents confirming the legality of their origin should be understood as documents regulated in the legislation of the Republic of Kazakhstan, indicating the legality of the person's commission of these actions.
The Government of the Republic of Kazakhstan shall, no later than six months after the publication of this regulatory resolution, submit to the Mazhilis of the Parliament of the Republic of Kazakhstan a draft law on amendments and additions to the Criminal Code and other legislative acts of the Republic of Kazakhstan in accordance with the legal positions of the Constitutional Court of the Republic of Kazakhstan set out in this regulatory resolution.
This regulatory resolution comes into force from the date of its adoption, is generally binding throughout the Republic, final and not subject to appeal.
To publish this regulatory resolution in Kazakh and Russian in periodicals that have received the right to officially publish legislative acts, the unified legal information system and on the Internet resource of the Constitutional Court of the Republic of Kazakhstan.
Constitutional Court of the Republic of Kazakhstan
© 2012. RSE na PHB "Institute of Legislation and Legal Information of the Republic of Kazakhstan" of the Ministry of Justice of the Republic of Kazakhstan
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