Comment to Article 168. Forcible seizure or forcible retention of power or the exercise by representatives of a foreign state or foreign reorganization of powers within the competence of authorized bodies and officials of the Republic of Kazakhstan of the Criminal Code of the Republic of Kazakhstan
1. Actions aimed at forcibly seizing power or forcibly retaining power in violation of the Constitution of the Republic of Kazakhstan, as well as aimed at forcibly changing the constitutional order of the Republic of Kazakhstan, -
is punishable by imprisonment for a term of ten to fifteen years.
2. The exercise by representatives of a foreign state or a foreign organization of powers within the competence of authorized bodies and officials of the Republic of Kazakhstan –
is punishable by a fine in the amount of one to five thousand monthly calculation indices or in the amount of the convicted person's salary or other income for a period of ten months to one year, or by imprisonment for a term of up to seven years.
The direct object of the crime is the foundations of the constitutional order of the Republic of Kazakhstan.
In accordance with art . 3 of the Constitution of the Republic of Kazakhstan "No one may appropriate power in the Republic of Kazakhstan. The appropriation of power is prosecuted by law. The right to speak on behalf of the people and the state belongs to the President, as well as to the Parliament of the Republic within the limits of its constitutional powers."
The objective side of this crime is formed by actions aimed at:
1) violent seizure of power;
2) forcible retention of power in violation of the Constitution of the Republic of Kazakhstan;
3) forcible change of the constitutional order of the Republic of Kazakhstan;
4) the exercise by representatives of a foreign state or a foreign organization of powers within the competence of authorized bodies and officials of the Republic of Kazakhstan.
Actions aimed at the violent seizure of power are the most extreme form of violation of Article 3 of the Constitution of the Republic of Kazakhstan, according to which "no one may appropriate power in the Republic of Kazakhstan. The appropriation of power is prosecuted by law." Such actions include an unconstitutional attempt to call for the seizure of power, the seizure of power in the Republic of Kazakhstan by individuals, groups, political parties, movements or other political forces to which it did not previously belong without changing the constitutional order.
In Part 1 of Article 168 of the Criminal Code of the Republic of Kazakhstan, the legislator names only one unconstitutional way of seizing power and retaining it, as well as changing the constitutional order — violence. Violence involves, for example, detention, internment, forced physical isolation, beatings, and harm to the health of persons representing authorities formed in accordance with the Constitution and laws of the Republic of Kazakhstan. If forcible seizure involves deprivation of life, then the actions of the perpetrator should, depending on the motives and goals, be qualified either as an attempt on the life of the President of the Republic of Kazakhstan (Article 167 of the Criminal Code), a statesman or a public figure (part 4 of Article 233 of the Criminal Code), or as murder (Article 96 of the Criminal Code).
A violent seizure of power is the seizure of it by force by persons, groups, or organizations to which power did not belong. The actions performed can be different: from the physical elimination of persons legally exercising authority or their forced isolation to blocking the work of legislative, executive and judicial authorities, isolating deputies and members of the Government, preventing them from entering work premises, threatening physical violence, etc. The corpus delicti in this form will be completed from the moment of the commission of actions aimed at the violent seizure of power, regardless of whether they led to the actual possession of power or not.
If the violent seizure of power was accompanied by the organization of mass riots or armed rebellion, then the deed should be qualified in conjunction with Articles 241 or 169, and in conjunction with Article 168 of the Criminal Code, the commission of actions aimed at the violent seizure of power carried out by a criminal community (criminal organization) should be qualified.
Actions aimed at forcibly retaining power are the preservation or attempt to retain power in violation of the Constitution of the Republic of Kazakhstan by persons to whom it previously legally belonged (after the expiration of the term of office of an official or body) or illegally passed into the hands of certain persons as a result of a violent seizure of power, a coup d'etat.
The composition of a crime in this form is completed from the moment of committing actions aimed at forcibly retaining power, regardless of whether they led to the desired result.
Actions aimed at forcibly changing the constitutional order are the next stage of unlawful encroachment, when, after the seizure or illegal retention of power, a new system of state power is formed and the constitutional system is changing. Actions aimed at forcibly changing the constitutional order may result in a change in the structure of state power, the abolition of some institutions of government and the introduction of new ones, etc..
The corpus delicti in this form is completed from the moment of the commission of actions aimed at forcibly changing the constitutional order of the Republic of Kazakhstan.
The subjective side of the crime is characterized by direct intent and a special purpose — to forcibly seize or retain power or to change the constitutional order of the Republic of Kazakhstan.
The motives of this crime can be very diverse - from ideological denial to direct hatred of the existing constitutional system of the Republic of Kazakhstan.
The subject of the crime is a sane individual who has reached the age of 16.
Part 2 of Article 168 of the Criminal Code establishes responsibility for the exercise by representatives of a foreign state or a foreign organization of powers within the competence of authorized bodies and officials of the Republic of Kazakhstan and provides for punishment in the form of imprisonment for up to 7 years.
Representatives of a foreign state or a foreign organization are their officials (members of government organizations, employees of diplomatic missions, employees of foreign special services, etc.), as well as other persons performing their assignments for the first time.
The crime is subject to the provision set out in the note to Article 165 of the Criminal Code of the Republic of Kazakhstan, which allows persons who have committed a socially dangerous act to avoid criminal liability.
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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