CC BY
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УДК 343.3/.7
Serebrennikova A. V.,
Doctor of law, Professor of criminal law and criminology Moscow State University. M. V. Lomonosov
Russia, Moscow Lebedev M. V.
Postgraduate student, Department of criminal law and criminology Moscow State University M. V. Lomonosov, Russia, Moscow DOI: 10.24411/2520-6990-2019-10489 LIABILITY TO PROSECUTION FOR A CRIME OF TERRORISM UNDER THE CRIMINAL CODE
OF THE KYRGYZ REPUBLIC
Abstract
Terrorism is an ideology of violence and total destruction, and for that reason, the achievement of any goal, whether it is political, commercial, religious or otherwise, carried out through the terrorist act and other terrorist crimes commission, in no event shall be justified. During the rapid globalization and integration period, terrorism has long broken through the countries diving borders, and terrorist organizations have a link with organized criminality. Thereby, from our point of view, norms and measures for counterterrorism efforts should be developed by the entire world community. This challenging task is also complicated by the fact that it is also necessary to take into account the specifics of the legal culture and national legislation of separate countries.
Keywords: Terrorism, Criminal Code of the Kyrgyz Republic, terrorist act, criminal law of Kyrgyzstan, terrorist, crimes of terrorism, a terrorist organization.
The terrorist crimes prevention and effective control over it is an important task for any modern government and the entire international community as a whole. The effectiveness improvement of terrorist crimes prevention plays an important role in counter-measures implementation. The Kyrgyz Republic experience shows many legislative steps on terrorism coun-termeasures development and introduce were actually effective and timely. "The MP of Kyrgyzstan states that "religious extremism and international terrorism currently represent a large-scale threat to the Kyrgyz Republic" and one of the countermeasures includes legislative acts improvement" [1]. Since January 1, 2019, there have been significant changes in the Kyrgyz Republic, three new codes providing criminal liability for crimes of different categories went into effect. These include the Criminal Code of the Kyrgyz Republic (KR CC), the Code of Offences and the Code on the violations.
The New Criminal Code of the Kyrgyz Republic has new legal provisions involving the responsibility for different types of crimes, including crimes against peace and security of humankind, war propaganda, war crimes, etc. The study of the new criminal law of the Republic, in a broad sense, shows the clear desire of the legislator of the Republic, aimed at the humanization of criminal law, criminal procedure, justice and post-penal adaptation process of the convicted.
Despite the reduction in the terms of liberty deprivation for a wide range of crimes, for which the punishment for a combination of crimes cannot exceed the established maximum of 20 years of imprisonment, life imprisonment remains in the Republic as a direct alternative to the death penalty. Such penalties can be applied to specific categories of crimes, the scope of which is directly outlined by the legislator. The life imprisonment may be prosecuted to perpetrators of crimes against sexual integrity of children, torture, terrorism, extremism, etc.
Persons who have committed terrorist offenses may not be granted amnesty or parole.
The previous Criminal Code of the Kyrgyz Republic dated October 1, 1997, No. 68, (enacted by Act No. 69 dated October 1, 1997), established in Section IX a number of concepts defining and allowing the operating procedures, for the needs of the criminal law of the Kyrgyz Republic, with such complex and ambiguous concepts as "act of terrorism", "financing of terrorism", "financial service" "funds", "terrorist", "terrorist organization", "terrorist activity".
Among the acts provided for in Chapter 24 of the Criminal Code "against public security and public order", article 226 of the RK CC provides for criminal liability for an act of terrorism as a direct terrorism manifestation. Thus, article 226 of the Criminal Code defines an "act of terrorism", namely: "the perpetration of an explosion, arson, or any other action endangering the lives of people, causing sizable property damage, or entailing other socially dangerous consequences, if these actions have been committed for the purpose of violating public security, frightening the population, or exerting influence on decision making by governmental bodies or international organizations, and also the threat of committing said actions for the same ends" [4]. The punishment under part 1 Article 226 of the Criminal Code provides deprivation of liberty for a term of ten to fifteen years.
The p. 2 of Article 226 of the Criminal Code reveals the constituent elements of the offence, namely: p. 1 part 2 of Article 226 of the Criminal Code provides as aggravating indicators the act of terrorism committed by a group of persons in a preliminary conspiracy; p. 2 part 2 of Article 226 of the Criminal Code of the Kyrgyz Republic the act of terrorism committed with the use of firearms, explosives, radioactive, toxic substances, as well as weapons that can be used for mass destruction; p. 3 part 2 of Article 226 of the Criminal Code, the deeds stipulated in the first part of the present
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Article, if they have been committed at strategic locations shall be punishable by deprivation of liberty for a term of fifteen to eighteen years with or without the property confiscation.
If the acts specified in part 1 and part 2 were committed organized group or have involved by negligence the death of a person, then this crime is subject to qualification under part 3 of Article 226 of the Criminal Code, with a liberty deprivation from eighteen to life imprisonment. The property confiscation is also possible under this article.
Article 226 of the Criminal Code of the Kyrgyz Republic contained the grounds for exemption from criminal liability of a person directly involved in the preparation of an act of terrorism, but by their direct actions, or timely notification to the authorities prevented an act of terrorism, if the person's actions do not contain any other offense.
The Criminal Code of the Kyrgyz Republic also provides for the provision of Article 228 of the Criminal Code, establishing criminal liability for knowingly making false communication about an act of terrorism.
Under part 1 of Article 228 of the Criminal Code, a person shall be held for knowingly false communication about an impending explosion, the act of arson, or any other action creating a danger of killing people, inflicting sizable damage to property, or failure of public events, or entailing other socially hazardous consequences. Punishment under part 1 of Article 228 of the Criminal Code reaches up to three years in liberty deprivation.
Parts 2 and 3 of Article 228 of the Criminal Code provides for the act provided for part 1 of Article 228 of the Criminal Code, if it caused large and extremely large damages, respectively. The upper limits of the punishment are five and eight years of imprisonment.
Article 228 of the RK CC contains a note that fixes the size of large and extremely large size damages. The calculation unit for the needs of this article is the estimate indicator specially established by the Kyrgyz Republic. Large size is a thousand of calculated indicators, and an extremely large includes five thousand [2].
Article 226.1 of the KR CC provide for incurring criminal responsibility for the financing of terrorist activities. Also the specified norm reveals definition of financing of terrorist activity by which it is understood: "The illegal provision of funds, the provision of financial services or the collection of funds by any means or means, directly or indirectly, with the intention or knowledge that the funds are intended or will be used in whole or in part to finance a terrorist and/or terrorist organization or to finance the organization, preparation or commission of terrorist activities on the territory of the Kyrgyz Republic or abroad, or to finance the travel of persons going to the country, which is not the state of their residency or nationality, for the purpose of committing, planning, preparing or participating in the commission of terrorist acts, or for the training of terrorists, or for undergoing such training." [4]
In a note, to article 226.1 of the KR CC the financial services, funds, a terrorist, a terrorist organization, and terrorist activities are defined.
Article 226.2 of the KR CC establishes criminal liability for the involvement of a person in the commission of terrorist or extremist crimes. Because of the person involvement in acts to the commission as provided by the articles: 226, 226.1, 226.3-226.5, 227, 229, 232, 294, 2951, 296, 299 - 299.3 acts, as well as participation in a terrorist or extremist organization, provides for criminal liability in the form of liberty deprivation for a period of eight to twelve years. The same acts containing qualifying element in the form of use of official position are subject to imprisonment for a term of up to 15 years [2].
The Criminal Code of the Kyrgyz Republic dated October 1, 1997 No. 68, contains in Art. 226.3 of the KR CC the responsibility for public incitements.
The Criminal Code of the Kyrgyz Republic, as amended on January 1, 2019, has made significant changes to the existing criminal law regarding the categories of crimes we are considering.
The general part of the KR CC also provides the lowering of the age for criminal responsibility, in accordance with Article 30 of the Criminal Code for a terrorist nature or terrorism.
A special feature is that Chapter 21, Article 131 of the KR CC provides for criminal liability for murder, with a qualifying element in the form of association with an act of terrorism, banditry. Unlike the current Criminal Code of RF dated 1996, where part 3 of Article 205 contains a qualifying element in the form of intentional infliction of death to a person in the commission of a terrorist act. According to the Criminal Code of the Russian Federation, the intentional infliction of death to a person in the commission of a terrorist act is qualified by paragraph "b", part 3 Article 205 of the Criminal Code and qualifications in conjunction with Article 105 of the Criminal Code cannot be the subject. The disposition of p. 4 of part 2 of Article 131 of the KR CC precludes the combination with Article 226 in the classification of crimes and eliminates legal uncertainty.
A new change was the introduction of Section 8, "Crimes against public safety and order". Deprivation of liberty to optimize enforcement is now divided into 6 categories (I, II, III, IV, V, and VI).
Article 236 of the new KR CC contains the following definition of an act of terrorism: : "the commission of an explosion, arson or other acts that create a risk of loss of life or other serious consequences, with the aim to terrorize the population, violating public security or influencing decision-making by authorities or international organizations"[5]. In the new version of the article, the legislator has added a "terrorist" purpose - the commission of an act of terrorism in order to terrorize the population. The additional object of crime in the form of property damage in a significant amount was withdrawn. In addition, the qualifying element in the form of a commission of the act of terrorism as a part of the organized criminal group was withdrawn. The legislator refused from the qualifying element in the form of causing death by negligence.
The new Criminal Code of the Kyrgyz Republic also provides for the provision of Article 242 of the Criminal Code, establishing criminal liability for
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knowingly making false communication about an act of terrorism. Thus, a person may be held criminally liable under Article 242 of the KR CC, if he/she left a false message about the impending explosion, arson, or other actions that may create a risk of death or other serious consequences. The upper threshold of the punishment under this provision is the deprivation of liberty of I category. Aggravating circumstances under this provision are withdrawn.
Article 237 of the KR CC redrafted differs from the previous 226.1 in that it presents a less extensive definition of the financing of terrorism. So under the financing of terrorism in the new edition, it is understood: the provision of funds, the provision of financial services or the collection of funds by any means or means, directly or indirectly, with the intention or knowledge that the funds are intended or will be used in whole or in part to finance a terrorist and/or terrorist organization or to finance the organization, preparation or commission of terrorist activities on the territory of the Kyrgyz Republic or abroad"[3]. Criminal liability involves punishment in the form of category III of deprivation of liberty.
Qualifying elements of action in the new edition has lost elements of use by the person of authority, official position and commission of act as a part of the organized criminal group. The commission of the financing of terrorism by a group of persons by prior agreement, with a penalty of deprivation of liberty of category IV, was retained as the only qualifying element.
Today, the Kyrgyz Republic is experiencing a constant condition of tension due to terrorist threats. These threats are largely due to the processes of globalization and integration with the pervasive spread of manifestations of terrorism around the world. The Head of the Theological studies and organizational and methodological support Department of the 10-main Department of the Ministry of Internal Affairs of the Kyrgyz
Republic, Erlan Bakiyev stated: "Terrorism poses a threat to the national security of the country and the normal development of society... it is particularly noted in the context of the continuing growth of tension in the Middle East (Syria and Iraq), as well as potential threats from Afghanistan" [6].
Bibliography
1. It is proposed in Kyrgyzstan to punish for terrorism and religious extremism at the age of 14. A bill amending the Criminal Code of the Kyrgyz Republic // https ://24 .kg/vlast/26658_v_kyirgyizstane_pred-lagayut_nakazyivat_za_terrorizm_i_religi-oznyiy_ekstremizm_nachinaya_s_ 14_let/ (electronic resource accessed 06/05/2019)
2. The Law of the Kyrgyz Republic dated March 17, 2009 No. 83, as amended on August 2, 2016, No. 162\the Criminal Code of the Kyrgyz Republic dated February 2, 2017 No. 19 (entered into force by Law of KR dated January 24, 2017 No. 10 dated from January 1, 2019). [Electronic resource accessed 06/20/2019]. URL: http://minjust.gov.kg
3. The Law of the Kyrgyz Republic of August 2, 2016 No. 162. http://cdb.minjust.gov.kg/act/view/ru-ru/111441 Criminal Code of the Kyrgyz Republic of October 1, 1997 No. 68. [Electronic resource]. URL: http://minjust.gov.k
4. Criminal Code of the Kyrgyz Republic dated of October 1, 1997 No. 68. [Electronic resource]. URL: http://minjust.gov.kg
5. The Criminal Code of the Kyrgyz Republic of February 2, 2017 No. 19 (is being implemented by the Law of the Kyrgyz Republic dated January 24, 2017 No. 10 from January 1, 2019). [Electronic resource accessed 06/20/2019]. URL: http://minjust.gov.kg
6. http://www.kabar.kg/news/terrorizm-i-religi-oznyi-ekstremizm-transformirovalis-v-slozhnoe-sotcial-no-politicheskoe-iavlenie-mvd/ (Electronic resource accessed 06/20/2019).
