The Constitutional Court pointed out the need to differentiate between entrepreneurship and organized crime

The Constitutional Court pointed out the need to differentiate between entrepreneurship and organized crime

Теlegram CС - https://t.me/consot_kz  

 

The Constitutional Court considered a citizen's petition to check the compliance with the Constitution:

  • Article 245, paragraph three, of the Criminal Code (hereinafter referred to as the CC) in the part of the words “by a criminal group”,
  • article 262 of the Criminal Code,
  • paragraphs 11 and 13 of the normative resolution of the Supreme Court of the RK of June 21, 2001 № 2 “On some issues of application by courts of legislation on liability for banditry and other criminal offenses committed in complicity” (hereinafter - the NP CC).

History of circulation

A citizen who was found guilty of committing crimes qualified on the basis of the above-mentioned norms applied to the Constitutional Court. In his opinion, these norms are formulated in an indefinite manner, allow for an expansive interpretation and lead to the de facto equation of entrepreneurial activity with participation in organized criminal groups, even in cases where there is no criminal intent, motives and objectives characteristic of organized crime.

Position of the Constitutional Court

Upon review, the Constitutional Court found no contradiction to the Constitution in:

  • article 262 of the Criminal Code,
  • Article 245, paragraph three, of the Criminal Code in the part of the words “by a criminal group”,
  • paragraphs 11 and 13 of the NP CC.

 

The Constitutional Court noted that the provisions of Article 262 of the CC are aimed at suppressing organized crime and can be applied only if there is a combination of objective and subjective features provided for in the criminal legislation. This is consistent with constitutional requirements and the international obligations of the Republic.

With regard to part three of Article 245 of the CC, the Constitutional Court emphasized that it is aimed at preventing deliberate tax evasion, especially in cases where such evasion takes place in the form of complicity and prior collusion.

The explanations contained in paragraphs 11 and 13 of the SC NP, according to the Constitutional Court, are given within the powers of the Supreme Court and do not contradict the Basic Law.

At the same time, in its decision the Constitutional Court drew attention to the problem of a possible formal approach in recognizing economic entities as a criminal group. The characteristics established by Article 262 of the Criminal Code in conjunction with paragraphs 11 and 13 of the SCP may create a risk of unjustified criminal prosecution against entrepreneurs - managers and employees of commercial organizations acting without criminal intent and within the framework of legitimate economic activities.

Conclusions of the Constitutional Court

Constitutional Court:

  1. recognized as constitutional the challenged norms of the criminal legislation and the NP CC;
  2. Invited the Government to consider further improvement of criminal legislation;
  3. recommended that the Supreme Court summarize law enforcement practice with a view to developing clear criteria for distinguishing between legitimate business activities and criminal forms of complicity.

 

The Constitutional Court emphasized the need for clarification of legislative norms and clarifications by the judiciary to ensure legal certainty, protection of the legitimate interests of entrepreneurs and respect for constitutional guarantees.

The full text of the CC normative ruling is available at the following link https://www.gov.kz/memleket/entities/ksrk/documents/details/861403?lang=ru