Criminal Legal Regulation of Lawful Infliction of Harm in the

Course of Covert Actions of Law Enforcement Agencies: Legislative

Experience of the Republic of Kazakhstan

Elena V. Mitskaya

and Gennadiy S. Shkabin

M. Auezov South Kazakhstan University, Shymkent, Republic of Kazakhstan

Research institute of the Federal Penitentiary Service of Russia, Moscow, Russia

Keywords: Criminal law, criminal intelligence, domestic intelligence activities, counterintelligence measures, criminal

intelligence and surveillance operations, circumstances precluding criminality of the act.

Abstract: Article 35 of the Criminal Code of the Republic of Kazakhstan provides the legitimacy of infliction of harm

in the course of criminal intelligence, counterintelligence measures, criminal intelligence and surveillance

operations. This provision is a criminal-law guarantee of safety of law enforcement officers involved in covert

operations to counter crime. However, the authors' analysis of this legal regulatory provision revealed a high

probability of violation of the rights of persons who have caused harm in the implementation of the named

actions. This circumstance requires scientific attention and broad discussion in the professional community.

The purpose of the article is a research of Article 35 of the Criminal Code of Republic of Kazakhstan from

the construction point of view and its correlation with other legal regulatory provisions of the Criminal Code

of Republic of Kazakhstan and sectoral legislation; the tasks - to examine the verbal formulation of the

construed regulatory provision of the Criminal Code of Republic of Kazakhstan to eliminate its contradictions

with other legal regulatory provisions of the Kazakhstan legislation, develop proposals for improvement of

proper quality of fixing circumstances excluding criminality of action in Article 35 of the Criminal Code of

Republic of Kazakhstan. The significance of the study for the practice of application of Article 35 of the

Criminal Code of Republic of Kazakhstan is justified by the author by making proposals to eliminate the

problematic nature of the legislative construction of this regulatory provision for its uniform application and

strengthening the ability of Article 35 of the Criminal Code of Republic of Kazakhstan to become an effective

regulator of social relations.

1 INTRODUCTION

The criminal regulation of inflicting harm in the

course of covert operations by law enforcement

agencies has been known to the legislation of the

Republic of Kazakhstan since 2001. The Criminal

Code of the Republic of Kazakhstan was

supplemented with Article 34-1 "Operative

investigation activities". This regulatory provision,

for the first time, provided for the grounds and

conditions of infliction of harm to legally protected

objects in the course of operative investigation

activities. Nevertheless, as I.S. Borchashvili rightly

notes, the institution of circumstances precluding

criminality was still far from perfect (Borchashvili

2012). As a result, when the new Criminal Code was

https://orcid.org/0000-0002-1908-668X

adopted in 2014, the regulation of harm in the

situations under consideration was changed. Article

35 was titled "Operative investigation activities or

covert-investigative actions". Sometime later, in

2016, this provision was amended. The regulation

appeared to regulate the harm caused to the interests

protected by the Criminal Code when carrying out

counterintelligence activities.

It should be noted that the institution of

circumstances precluding criminality has been the

subject of many studies, such as N.N. Turetsky

(2005), R.M. Stepkin (2006), A.A. Tsygankov

(2011), A.P. Dmitrenko (2010) and others. However,

criminal law doctrine hardly focused on analyzing the

implementation of surveillance, counter-intelligence

and covert investigative measures. Article 35 of the

Criminal Code has not been widely discussed,

214

Mitskaya, E. and Shkabin, G.

Criminal Legal Regulation of Lawful Inﬂiction of Harm in the Course of Covert Actions of Law Enforcement Agencies (Legislative Experience of the Republic of Kazakhstan).

DOI: 10.5220/0010634000003152

In Proceedings of the VII International Scientiﬁc-Practical Conference “Criminal Law and Operative Search Activities: Problems of Legislation, Science and Practice” (CLOSA 2021), pages

214-218

ISBN: 978-989-758-532-6; ISSN: 2184-9854

although this provision is not without controversy.

These circumstances make the research into the topic

of interest.

2 MATERIALS AND METHODS

The material for the research was criminal, criminal

procedural and investigative legislation of the

Republic of Kazakhstan, the Law of the Republic of

Kazakhstan on counterintelligence activity, scientific

works of Kazakh, Russian and foreign scientists on

the issues of operative-investigative activity,

correlation of covert and non-covert investigative

actions.

The methodological basis of the research was the

dialectical method of cognition and specific scientific

methods such as formal-logical, logical-legal,

system-structural, comparative-legal, functional,

which together allowed to make conclusions and

develop recommendations to improve Article 35 of

the Criminal Code of the Republic of Kazakhstan.

3 RESULTS AND DISCUSSION

Detective work has always been given special

importance in the fight against crime (D.L. Carter,

2009). Therefore, the issues of the use of materials of

operational and investigative activities in criminal

proceedings (Carter & Carter, 2009; Murphy, 2020),

their evidentiary value (Ratcliffe, 2002), integration

of operational and investigative and criminal

procedural activities (Amirkhanov, 2016), criminal

legal support of operational and investigative

activities (Shkabin, 2018) are still relevant. In this

regard, of interest is the construction of article 35 of

the Criminal Code of the Republic of Kazakhstan,

which enshrines as circumstances that exclude

bringing a person to criminal responsibility, inflicting

of harm in the implementation of operational-search,

counterintelligence activities or covert investigative

actions.

It is necessary to say that recognition of inflicting

of harm in the implementation of domestic

intelligence activities as a circumstance precluding

public danger of act is not new for Kazakhstan

criminal legislation, it was introduced in the Criminal

Code of the Republic of Kazakhstan in 1997 by the

Law of the Republic of Kazakhstan "About making

changes and additions in some legislative acts of the

RK on strengthening of the struggle against organized

crime and corruption" of March 16, 2001. With the

adoption of the current Criminal Code of the Republic

of Kazakhstan the legislator has expanded the list of

circumstances that exclude criminality of a deed. To

operative-search actions counterintelligence actions

and informal investigatory actions were added. This

is due to the fact that the Criminal Procedure Code of

the Republic of Kazakhstan of 2014 divided

investigative actions into transparent or traditional

and tacit, conducted with the use of forms and

methods of law enforcement operations (Akhpanov,

Khan, 2016). At the same time, six special

investigative measures enshrined in the Law on Law

Enforcement Operations, in the Criminal Procedure

Code of the Republic of Kazakhstan are referred to

tacit investigative actions: 1) tacit audio and (or)

video monitoring of a person or place; 2) tacit

monitoring, interception and withdrawal of

information transmitted over electric

(telecommunications) communication networks; 3)

tacit acquisition of information on connections

between subscribers and (or) subscriber devices; 4)

surreptitious taking of information from computers,

servers and other devices designed to collect, process,

accumulate and store information; 5) surreptitious

control of mail and other consignments; 6)

surreptitious penetration and (or) inspection of a

place. Two covert investigative actions - covert

observation of a person or place and covert control

purchase are similar to the general operational and

investigative activities enshrined in the Law

Enforcement Operations Act. Thus, the Kazakh

legislator, having copied and transferred general and

special operational-investigative measures to the

Criminal Procedure Code, tried to give operational-

investigative materials the force of evidence. At the

same time, domestic intelligence activities were

artificially divided into domestic intelligence

activities and tacit investigative actions (Akhpanov,

Khan, 2018). The distinction between them is made

by legislative enshrining - some are enshrined in the

operative-investigative legislation and others in the

Criminal Procedure Code of the RK. Also, the criteria

for distinction are the subjects of authorization, as

well as the stages of the criminal process at which the

relevant actions are applied (operational-investigative

activities may be carried out without registration of a

criminal offense in the Unified Register of pre-trial

investigations, and covert investigative actions are

carried out only within the pre-trial proceedings, that

is, within the registered or initiated criminal case).

But, as already mentioned, these activities, in fact,

remain operative-investigative, and they are carried

out by bodies carrying out law enforcement

operations. In this regard, Kazakh scientists rightly

Criminal Legal Regulation of Lawful Inﬂiction of Harm in the Course of Covert Actions of Law Enforcement Agencies (Legislative

Experience of the Republic of Kazakhstan)

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draw attention to the inadmissibility of combining

two different in form and essence types of activities -

investigative and operative-investigative, as this leads

to the liquidation of the latter (Akhpanov, Khan,

2016, Karl, 2019). Therefore, some authors propose

to exclude unspoken investigative actions from the

Criminal Procedural Code of the Republic of

Kazakhstan (Ayupov, 2019).

Therefore, following the artificial division of law

enforcement operations into two types - operative-

investigative and tacit investigative activities,

according to the logic of the legislator, there was a

need to recognize the harm caused in the

implementation of tacit investigative activities,

excluding liability under the Criminal Code of the

Republic of Kazakhstan, on a par with the harm

caused in the implementation of domestic intelligence

activities. Subsequently, in connection with the

adoption of the law of the Republic of Kazakhstan on

counterintelligence activities, which is an operational

and investigative activity (Suleimenov, 2017), Article

35 of the Criminal Code of the Republic of

Kazakhstan is adjusted, supplemented by

counterintelligence activities, harm caused during the

implementation of which is also not a criminal

offence.

Based on this, we can conclude that there is no

fundamental difference between Article 341 of the

Criminal Code of the Republic of Kazakhstan of 1997

and Article 35 of the Criminal Code of the Republic

of Kazakhstan. Operational-investigative measures

remain at the core, some of which in the updated

version have become tacit investigative actions. At

the same time, we cannot but recognize that the

enumeration in Article 35 of the Criminal Code of the

Republic of Kazakhstan of activities, from which the

harm caused will not be recognized as a criminal

offense, is carried out in exact adherence to the letter

of the law.

As part of the strengthening of humanization,

given the fact that the domestic intelligence activities

and covert investigative actions are directly related to

the invasion of human privacy, amendments were

made to the law on domestic intelligence activities

and the Criminal Procedure Code of the Republic of

Kazakhstan. They consist in the fact that a person in

respect of whom such activities were carried out has

the right to demand the materials that served as a

reason for operational-investigative activities. This

person, within 15 days from the moment of being

notified about carrying out uncovered investigative

actions, has the right to appeal to court for their

recognition as illegal and if the damage was caused -

for its compensation (parts 5, 6, article 106 of the

Criminal Procedure Code). Accordingly, current

legislation does not exempt from compensation of

harm and bringing a person to civil liability (art. 9 of

Law of the Republic of Kazakhstan on Law

Enforcement Operations Act, art. 17 of Law of the

Republic of Kazakhstan on counter-intelligence

activity). But it is presumed that bringing to criminal

liability for infliction of harm in such a case will be

impossible by virtue of Article 35 of the Criminal

Code of the Republic of Kazakhstan.

However, the question arises - how consistent is

Article 35 of the Criminal Code with the enshrined

responsibility of persons for illegal actions as a result

of the implementation of operational-search and

counterintelligence activity? We must recognize that

Article 9 of the Law of Kazakhstan on the operative-

search activity and Article 17 of the Law of

Kazakhstan on counterintelligence activity are

referential. Therefore, their wording is not specific -

for the commission of illegal actions in the

implementation of the activities under consideration

persons are liable established by the laws of the

Republic of Kazakhstan. Based on the meaning of

part 1 of Article 35 of the Criminal Code of the

Republic of Kazakhstan for the harm caused as a

result of such activities, a person shall not be held

only criminally liable. However, according to part 2

of this article, the exclusion of criminality does not

apply to persons who have committed acts "involving

a threat to human life or health, an ecological disaster,

a public disaster or other grave consequences". Thus,

the legislator still imposes a restriction on the

unreasonably broad, limitless exclusion of criminal

responsibility established by part 1 of Article 35 of

the Criminal Code of the Republic of Kazakhstan.

At the same time, such a restriction is inconsistent

with the regulatory provisions of the law on

counterintelligence activities, which confirm the

possibility of just such situations involving a threat to

life or health, of serious consequences, which may

arise not only for operational officers, but also for

confidential assistants. Therefore, in the event that

confidential assistants are injured or harmed to their

health or die, the law establishes the payment of a

monetary allowance. In this regard, we believe that

the Russian legislator should take into account and

adopt the positive experience of the Republic of

Kazakhstan and introduce into the Criminal Code a

regulatory provision on the exclusion of the crime of

harm during operational and investigative activities

(Shkabin, 2017).

Certain inconsistency of Article 35 of the

Criminal Code of the Republic of Kazakhstan is also

seen with Article 15 of the Law of the Republic of

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Kazakhstan on Law Enforcement Operations, which

directly prohibits taking actions that create a real

threat to life, health and property of citizens, except

in cases of extreme necessity and necessary defense,

as well as using violence, threats, blackmail and other

illegal actions that restrict the rights, freedoms and

legitimate interests of citizens and officials.

Accordingly, during an operative infiltration into a

criminal group, if an officer forcedly takes the life of

a criminal, then for the qualification of his actions it

will be necessary to apply Article 32 of the Criminal

Code "Necessary Defense" or Article 34 of the

Criminal Code "Extreme necessity", but not Article

35 of the Criminal Code, which in this case does not

relieve the employee from criminal liability. In this

regard, one cannot but agree with A. V. Nikulenko

that "even not quite an active role of the operative in

the commission of a robbery will entail criminal

liability" (Nikulenko, 2019). Indeed, according to

part 2 of article 35 of the Criminal Code of the

Republic of Kazakhstan, the operative in the case in

question should be held criminally liable, since his

actions involve a threat to human life or health.

It follows from this that the circumstance

precluding criminality of a deed enshrined in Article

35 of the Criminal Code of the Republic of

Kazakhstan has a certain inconsistency with the

regulatory provisions of sectoral legislation and at the

same time is not unconditional. Thus, by virtue of part

1 of Article 35 of the Criminal Code of the Republic

of Kazakhstan will be recognized as a circumstance

precluding criminality of an act only if they were

carried out in respect of group criminality. We are

talking about various kinds of complicity which are

listed in part 1 of Article 35 of the Criminal Code of

the Republic of Kazakhstan - a group of persons, a

group of persons by prior agreement, and a criminal

group. In other words, legal force of Article 35 of the

Criminal Code of the Republic of Kazakhstan does

not cover operational-search, counterintelligence

activities or covert investigative actions in detection

of individual criminal activities, which in its turn

contradicts to part 4 of Article 232 of the Criminal

Procedure Code of the Republic of Kazakhstan,

Articles 10, 12 of Law Enforcement Operations Act,

which also allow their implementation in respect of

individuals.

4 CONCLUSIONS

In this regard, without disputing the validity of the

introduction of Article 35 of the Criminal Code, given

that there is Articles 32, 34, 36, 37 of the Criminal

Code, it is advisable to subject it to adjustment in

order to harmonize with other provisions of the

Criminal Code and sectoral legislation. Firstly, to

amend Part 2 of Article 35 of the Criminal Code, as it

is not consistent with Article 32, 34 of the Criminal

Code. Secondly, to exclude from part 1 of Article 35

of the Criminal Code of the Republic of Kazakhstan

the list of group crimes in which the conducted

investigative, counterintelligence or covert

investigative activities exclude their criminal liability

as inconsistent with Article 4 of Article 232 of the

Criminal Procedure Code, Article 10 and Article 12

of the law of the Republic of Kazakhstan on Law

Enforcement Operations, which allow

implementation of investigative measures or covert

investigative actions in respect of specific

individuals.

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