Comment to Article 141. Violation of equal rights of citizens of the Criminal Code of the Republic of Kazakhstan of the Criminal Code of the Republic of Kazakhstan

     1. Direct or indirect restriction of human (citizen) rights and freedoms based on origin, social, official or property status, gender, race, nationality, language, attitude to religion, beliefs, place of residence, membership in public associations or any other circumstances —      

is punishable by a fine in the amount of two hundred to one thousand monthly calculation indices or in the amount of the convicted person's salary or other income for a period of two to five months, or by arrest for a term of up to three months, or by imprisonment for a term of up to one year.      

2. The same act committed by a person using his official position or by the head of a public association, —      

is punishable by a fine in the amount of five hundred to two thousand monthly calculation indices or in the amount of the convicted person's salary or other income for a period of five to eight months, or by arrest for up to six months, or by imprisonment for up to two years with deprivation of the right to hold certain positions or engage in certain activities for up to three years or without one.

     According to art . 2 of the Universal Declaration of Human Rights and Freedoms (December 10, 1948) Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, color, sex, language, religion, political or other beliefs, national or social origin, property, estate or other status. In addition, no distinction should be made based on the political, legal, or international status of the country or Territory to which a person belongs, regardless of whether that Territory is independent, trustee, Non-Self-Governing, or otherwise limited in its sovereignty.     

Article 14 of the Constitution of the Republic of Kazakhstan establishes the equality of all citizens before the court and the law. No one may be discriminated against in any way on the grounds of origin, social, official or property status, gender, race, nationality, language, attitude to religion, beliefs, place of residence or any other circumstances. The State guarantees equality of human and civil rights and freedoms regardless of gender, race, nationality, language, origin, property and official status, place of residence, attitude to religion, beliefs, membership in public associations, as well as other circumstances.      

The public danger of a crime under Article 141 of the Criminal Code of the Republic of Kazakhstan is a violation of the equality of citizens guaranteed by the Constitution of the Republic of Kazakhstan.      

The object of the analyzed act is the specified constitutional right to equality. Violation of the equality of citizens can take place in various spheres of life - political, social, economic. It is especially dangerous to distinguish people by race, nationality and language due to the tension of modern national relations. Restrictions on beliefs and the introduction of hidden censorship are fraught with a return to the past.      

The objective side is expressed in actions or omissions aimed at directly or indirectly restricting the rights and freedoms of one person (citizen) or a group of persons on the grounds of his belonging to a different nationality, race, gender, public associations, other religion, origin, social, official or property status. Direct restriction of human (citizen's) rights and freedoms on the above-mentioned grounds is expressed in the inability of citizens to exercise them; indirect restriction of rights and freedoms is associated with the creation of obstacles to their realization. An example is illegal administrative detention on the grounds of belonging to a certain nationality; unjustified refusal to register at the place of residence on the same grounds; refusal to hire or illegal dismissal from work on the grounds specified in the disposition of this article, refusal to rent premises on grounds of religious affiliation, etc.      

A crime is considered completed from the moment of direct or indirect restriction of rights and freedoms for the reasons specified in the disposition of the article.      

If the violation of a citizen's equal rights involves the use of violence that has caused harm to his health, the act is subject to qualification in conjunction with the relevant articles (Articles 103-105 of the Criminal Code). In other cases, the method of committing this crime does not affect the qualification under Part 1 of Article 141 of the Criminal Code.      

The subjective side of the violation of the equality of citizens is characterized by direct or indirect intent. The perpetrator is aware that he violates the equality of citizens guaranteed by the Constitution, foresees the inevitability or possibility of harm to the rights and freedoms of a citizen and wants or consciously allows it to occur.  

    A constructive sign of the subjective side of the composition of this act is the motive. The motives may be different: chauvinism, religious fanaticism, nationalism, and others, but they all run counter to the constitutionally established principles of interpersonal relations in society, which can provoke serious conflicts and neglect constitutional rights.    

Any sane person who has reached the age of 16 may be the subject of a violation of the equality of citizens.      

141 of the Criminal Code provides for a qualifying feature to which the legislator refers the commission of this criminal act by a person using his official position or by the head of a public association. Such a person may be an official who is recognized as a person who permanently, temporarily or by special authority performs the functions of a government representative or performs organizational, administrative or economic functions in state bodies, local governments, as well as in the Armed Forces of the Republic of Kazakhstan, other troops and military formations of the Republic of Kazakhstan (note 3 to art. 307 of the Criminal Code).     

The subject under Part 2 of Article 141 of the Criminal Code also includes persons performing managerial functions equivalent to them, persons holding a responsible public position (notes 1, 2, 4 to Articles 307 of the Criminal Code), as well as persons performing managerial functions in a commercial or other organization (note to Article 228 of the Criminal Code).     

In accordance with the Law of the Republic of Kazakhstan dated May 31, 1996 No. 3-I "On Public Associations" (amendments and additions) Public associations in the Republic of Kazakhstan are recognized as political parties, trade unions and other associations of citizens created on a voluntary basis to achieve common goals that do not contradict the legislation. Public associations are non-profit organizations. Their leaders are also the subjects of a crime under Part 2 of Article 141 of the Criminal Code.   

  Therefore, the subject of the qualified composition of the analyzed crime is special. To qualify an act under Part 2 of Article 141 of the Criminal Code, it is necessary that the perpetrator violate the equality of citizens by using the powers granted to him by his official position.      

The crimes described in Article 141 of the Criminal Code of the Republic of Kazakhstan should be distinguished from incitement of national, racial or religious hatred (Article 164 of the Criminal Code of the Republic of Kazakhstan). These crimes are characterized by a violation of the equal rights of citizens (Article 141 of the Criminal Code of the Republic of Kazakhstan) and are not aimed at inciting national, racial or religious hatred, at humiliating national dignity.      A crime under art. 164 of the Criminal Code of the Republic of Kazakhstan, may be committed as a result of public acts or using mass media to promote the exclusivity, superiority or inferiority of citizens based on their attitude to religion, nationality or race.      The crime provided for in Part 1 of Article 141 of the Criminal Code of the Republic of Kazakhstan refers to crimes of minor gravity.    

 The crime provided for in Part 2 of Article 141 of the Criminal Code of the Republic of Kazakhstan refers to crimes of moderate severity.

Commentary from 2007 to the Criminal Code of the Republic of Kazakhstan from the Honored Worker of Kazakhstan, Doctor of Law, Professor, Academician of the Kazakhstan National Academy of Natural Sciences BORCHASHVILI I.Sh.                  

Date of amendment of the act:  08/02/2007 Date of adoption of the act:  08/02/2007 Place of acceptance:  NO Authority that adopted the act: 180000000000 Region of operation:  100000000000 NPA registration number assigned by the regulatory body:  167 Status of the act:  new Sphere of legal relations:  028000000000 Report form:  COMM Legal force:  1900 Language of the Act:  rus

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