Comment to article 149. Obstruction of the exercise of the right to freedom of conscience and religion of the Criminal Code of the Republic of Kazakhstan
Obstruction of the legitimate activities of religious organizations or the performance of religious rites —
is punishable by a fine in the amount of fifty to two hundred monthly calculation indices or in the amount of the convicted person's salary or other income for a period of one to three months, or correctional labor for up to one year, or arrest for up to three months.
According to article 18 of the International Covenant on Civil and Political Rights (December 16, 1966):
"1. Everyone has the right to freedom of thought, conscience and religion. This right includes the freedom to have or adopt a religion or beliefs of one's choice and the freedom, either alone or in community with others, in public or private, to practice one's religion or beliefs in worship, religious and ritual practices and teachings.
2. No one should be subjected to coercion that impairs their freedom to have or adopt a religion or beliefs of their choice.
3. Freedom to profess religion or beliefs is subject only to restrictions established by law and necessary to protect public safety, order, health and morals, as well as the fundamental rights and freedoms of others.
4. The States Parties to the present Covenant undertake to respect the freedom of parents and, where appropriate, guardians to ensure the religious and moral education of their children in accordance with their own beliefs."
Article 22 of the Constitution of the Republic of Kazakhstan guarantees everyone the right to freedom of conscience, but at the same time defines that the exercise of the right to freedom of conscience should not condition or restrict universal human and civil rights and obligations to the state.
The public danger of an act provided for in Article 149 of the Criminal Code of the Republic of Kazakhstan is expressed in violation of this constitutional right.
The object of this crime is the constitutional right to freedom of conscience. Freedom of conscience means the right of anyone to profess any religion or not to profess any, to freely choose, have and disseminate religious and other beliefs that do not contradict universal human norms.
Encroachment on religious freedom restricts the personal freedoms of citizens, in particular religious freedom, and interferes with the free expression of religious beliefs, which are a personal matter for everyone.
The objective side of the analyzed act is formed by actions or omissions aimed at obstructing the legitimate activities of religious organizations or the performance of religious rites. Thus, the objective side consists of two groups of actions, firstly, the creation of obstacles, obstacles to the legitimate activities of religious organizations, and secondly, the creation of obstacles, obstacles to religious rites.
Obstruction of the activities of religious organizations can be committed either by action (refusal to register an organization or refusal to issue documents confirming the legality of the organization's activities) or by omission (evasion from registration or from issuing documents).
For example, the actions of the perpetrator, such as the persecution of leaders of religious organizations, the closure of churches, mosques and cultural institutions without legitimate grounds, should be regarded as hindrances and obstacles to the legitimate activities of religious organizations (that is, obstruction).
The activities of religious organizations are recognized as legitimate only after their registration as a legal entity and if this activity does not contradict the laws and does not aim to cause physical or moral harm to believers.
The creation of hindrances and obstacles to religious rites may result in the prohibition of ritual actions, for example, bell ringing during celebrations, baptisms, weddings, participation in prayer, etc.
The crime is considered completed from the moment of the commission of obstruction of the activities of a religious organization or the performance of a religious ceremony.
On the subjective side, the act is committed only with direct intent. The perpetrator is aware that it violates the constitutional right to freedom of conscience, anticipates the possibility or inevitability of socially dangerous consequences and desires their occurrence. The motives may be different: self-interest, intolerance to any religion, hooliganism, etc. They do not affect qualifications, but are taken into account by the court when imposing punishment.
The general subject of the crime in question is a sane individual who has reached the age of 16.
The actions of officials who prevent the activities of religious organizations or the performance of religious rituals using their official position should be classified as a set of crimes under Articles 149 and 307-308 of the Criminal Code of the Republic of Kazakhstan.
The crime provided for in Article 149 of the Criminal Code of the Republic of Kazakhstan refers to crimes of minor gravity.
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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