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NORMATIVE RESOLUTION OF THE SUPREME COURT OF THE REPUBLIC OF KAZAKHSTAN

of June 23, 2006 No. 6

About court practice on cases on racketing

(as amended on 11-12-2020)

Due to the changes in the legislation of the Republic of Kazakhstan the plenary session of the Supreme Court of the Republic of Kazakhstan decides:

1. The racketing is among crimes for profit against property.

Subject of racketing are: alien property (things, money, including foreign currency, securities, objektivirovanny results of creative intellectual activities, trade names, trademarks and other means of individualization of products): the right to property (the will, the insurance policy, the receipt, the agreement, the warrant for receipt of these or those values, different types of securities and other document granting to it the right to property) or making of other actions of property nature (service of nonequivalent content, for example, allegedly for "protection of the room", for "assistance" in sales of products, destruction of the debenture, refusal of debt in common property, decrease in interest rates, production of any works, etc.).

The racketing is considered ended at the time of presentation to the victim of the property requirements connected to the corresponding threats irrespective of, the guilty person of the desirable purpose reached acquired required property, the rights to property or achieved making by the victim of actions of property nature.

2. In case of qualification of actions of the perpetrator as racketing it is necessary to establish the specific type of threat provided in law disposition, meaning that injured from threat of the racketeer it can be as the owner or person, in introduction or under protection of which there is property, and their relatives. The form of expression of threat for qualification of racketing does not matter (oral or written, stated personally or through the intermediary, formulated frankly or in the veiled form), however its content shall be apprehended by the victim unambiguously according to its actual sense.

For qualification of actions of the racketeer insignificantly by whom this threat can be realized: him or his accomplices.

3. As racketing under the threat of use of violence it is necessary to understand the actions expressing intention to make forced psychological impact (threat to deprive of life, to do severe, average or little harm to health, to commit rape or other violent acts).

4. In case of the racketing made with threat of destruction or damage of property for qualification of actions of the guilty person does not matter about what property there is a speech (entrusted to the victim for protection or its own, movable or immovable) and by what method this threat will be realized. In these cases it must be kept in mind that the threat shall be real and capable to make frightening impact on the victim.

If when making racketing the property of the victim was destroyed or damaged under the circumstances specified in disposition of article 202 of the Criminal Code of Kazakhstan (further - UK), then actions of the guilty person form set of the specified crimes.

5. Under the threat of distribution of the data dishonoring the victim or his relatives, or other data which announcement can do essential harm to interests of the victim or his relatives it is necessary to understand the requirement of transfer of alien property either right to the property or making of other actions of property nature which is followed by threat of disclosure of any data which can do harm to honor and advantage of the victim. At the same time does not matter whether data under the threat of which disclosure the racketing is made are true. At the same time it must be kept in mind that the victim aims to keep these data in secret, and the threat of their disclosure is used by the guilty person to force it to accomplishment of the made demands.

Excluded

Essential harm can be done by distribution of the data dishonoring the victim.

In case of determination of essential harm it is considered as value judgment injured weights of the moral damage caused to it, and the objective data testimonial of degree of moral and physical sufferings of the victim as a result of the racketing made under the threat of distribution of the damaging evidence.

In case of determination of causing moral sufferings it is necessary to be guided by Item 3 of the normative resolution of the Supreme Court of the Republic of Kazakhstan of November 27, 2015 No. 7 "About application by courts of the legislation on compensation of moral harm".

Essential harm can be done also by announcement of other data which, without being dishonoring, are capable to do to the victim essential harm, for example, disclosure of the trade secret attracting causing losses to business, the disclosure of secrecy of adoption or the data relating to family and private life, etc.

6. Using violence it is necessary to understand the making of this crime connected with restriction of freedom, causing physical pain, striking blows, beating, causing easy or average weight of harm to health of the victim as racketing.

7. In case of qualification of actions of persons guilty of making of racketing by sign "group of persons by previous concert", it is necessary to be guided by part two of article 31 UK and Items 8, of 9, of the 10th normative resolution of the Supreme Court of the Republic of Kazakhstan of July 11, 2003 No. 8 "About court practice on cases on plunders" (further – NP VS RK "O sudebnoy praktike po delam o hishcheniyakh").

8. In case of application of the qualifying sign of not momentariness it is necessary to be guided by article 12 UK and Item 12 of NP VS RK "O sudebnoy praktike po delam o hishcheniyakh".

9. In case of qualification of actions of persons guilty of making of racketing on the basis of criminal group, it is necessary to be guided by Item 24) of article 3 UK and Item 11 of NP VS RK "O sudebnoy praktike po delam o hishcheniyakh".

10. In case of determination of severe harm health should be guided by Item 11) of article 3 UK and the Rules of the organization and production of judicial examinations and researches in bodies of judicial examination approved by the order of the Minister of Justice of the Republic of Kazakhstan of April 27, 2017 No. 484.

In case of causing in case of racketing of severe harm health of the victim does not need additional qualification under article 106 UK as the deeds are completely covered by Item 1) of Article 194 part three.

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