Comment to Article 308. Abuse of power or official authority of the Criminal Code of the Republic of Kazakhstan of the Criminal Code of the Republic of Kazakhstan

     1. Abuse of power or official powers, that is, the commission by a person authorized to perform state functions or a person equated to him of actions that clearly exceed the limits of his rights and powers and have entailed a significant violation of the rights and legitimate interests of citizens or organizations or the legally protected interests of society or the state., -      

is punishable by a fine in the amount of two hundred to five hundred 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 deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years, or by arrest for a term of four to six months, or by imprisonment for a term of up to three years old.      

2. The same act committed by an official, -      

is punishable by a fine in the amount of three hundred to seven hundred monthly calculation indices or in the amount of the convicted person's salary or other income for a period of three to seven months, or by deprivation of the right to hold certain positions or engage in certain activities for up to five years, or by imprisonment for up to five years.      

3. The same act committed by a person holding a responsible public position, -      

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

4. The acts provided for in the first, second or third parts of this Article that have entailed grave consequences or have been committed:      

a) with the use of violence or the threat of its use;      

b) with the use of weapons or special means;      

c) in order to obtain benefits and advantages for oneself or other persons or organizations, or to harm other persons or organizations, -      

are punishable by imprisonment for a term of up to ten years with deprivation of the right to hold certain positions or engage in certain activities for a term of up to seven years.      

Abuse of power or official powers is defined in the Criminal Code as the commission by a person authorized to perform state functions, or a person equated to him, of actions that clearly exceed the limits of his rights and powers and entailed a significant violation of the rights and legitimate interests of citizens or organizations, or the legally protected interests of society or the state.      

The object of the crime is the normal, legally regulated activities of the State apparatus and the related interests of the civil service and public administration.      

An additional object may be the life, health, honor and dignity of a person.    

 The objective side of abuse of power or official authority consists in actions that clearly exceed the limits of the powers granted to the person in the service; the consequences in the form of a significant violation of the rights and legitimate interests of citizens or organizations, legally protected interests of society or the state; the causal relationship between the obvious excess of the guilty person of the limits of the powers granted to him and the consequences that have occurred.   

  The basis for recognizing an act as an abuse of power or official authority should not be the moment of its commission, official or off-duty time, but its connection with the official position of the person. Criminal liability of a person for illegal actions committed by him outside the service should not be excluded, but due to his official position, official authority, which he enjoys not as a private person, but as an official.   

   The legislator defines the crime under Article 308 of the Criminal Code of the Republic of Kazakhstan as abuse of power or official authority. That is, the law deals with two types of criminal behavior, which, in our opinion, should be distinguished by the subject of the crime: an excess of power can be committed by a person with authority, i.e. a representative of the authorities; and any other person, when committing the crime in question, exceeds the official powers granted to him by laws and regulations, defining the scope of his rights and duties in office.   

   The rights and powers of a person beyond which they clearly exceed are established by laws and by-laws.       The actions of a person clearly exceeding his authority should be classified as follows:    

 1) The commission of actions falling within the competence of a higher person in the order of subordination of the same department.      

2) The commission of actions falling within the competence of the person of this department, to which the guilty person is not subordinate.    

  3) Performing actions within the competence of a person of another department.    

 4) The commission of actions within the competence of this person, but permissible only if the conditions specified in the law or other normative act are met.     

5) Performing actions that fall within the competence of a person when granting him special powers that are not granted to him in this case.   

  6) Sole conduct of actions within the competence of the collegial body.     

7) The commission by a person of actions that no official has the right to commit.    

  Another mandatory sign of the objective side of abuse of power or official authority is a socially dangerous act, expressed in a significant violation of the rights and legitimate interests of citizens or organizations, legally protected interests of society or the state. The concept of a "significant violation" of the interests of society, used in the law to designate a socially dangerous consequence as part of the crime being analyzed, is evaluative. The evaluative nature of the effect does not exclude the need to analyze it in order to establish criteria that would help to determine the presence or absence of the required effect in each specific case.  

   For the concept of "significant violation", one can use the characteristic of consequences from the quantitative and qualitative sides that exists in the legal literature in relation to the concept of "significant harm". The qualitative side contains a statement of the fact of violation of the values mentioned in the law: the rights and legitimate interests of citizens and organizations, the legitimate interests of society or the state. The quantitative side is expressed in the definition of "essential" and consists in assessing the size and degree of violation of these values.     

A mandatory sign of the objective side of abuse of power or official authority is the causal relationship between the act and its consequences.    

 The specific nature of the causal relationship in the abuse of power or official authority is that the cause is the actions of persons described in the law, the consequence is a significant violation of the rights and legitimate interests of citizens or organizations, or the protected interests of society or the state. In each case, in order to establish the existence of a causal relationship, it is necessary to establish that the person's action preceded a significant violation of the rights and legitimate interests of citizens or organizations, protected interests of society or the state in time, and was a necessary condition for the occurrence of the intended consequences.    

  The subjective side of abuse of power or official authority is characterized by guilt in the form of direct or indirect intent (specified or unspecified). The person is aware that he is performing an action that is clearly (i.e. obviously, indisputably) for himself goes beyond the powers granted to him by law or other normative acts, anticipates the possibility or inevitability of consequences in the form of a significant violation of the rights and legitimate interests of citizens, organizations, society or the state, desires the occurrence of these consequences or consciously allows them or treats them indifferently.     

Abuse of power or official authority can be committed for any motives and goals (revenge, careerism, other personal motives, self-interest, misunderstood interests of the service, etc.), which do not matter for qualifications, but are taken into account when imposing punishment.   

  The subject of a crime under Part 1 of Article 308 of the Criminal Code of the Republic of Kazakhstan is a person authorized to perform state functions or a person equivalent to him.  

   Part 2 of Article 308 of the Criminal Code of the Republic of Kazakhstan provides for responsibility for the commission of this crime by an official, part 3 – by a person holding a responsible public position.     

Acts provided for in parts one, two, or three of Article 308 of the Criminal Code of the Republic of Kazakhstan that have serious consequences, as well as if they are committed, are recognized as particularly qualified types of abuse of power or official authority.:   

  a) with the use of violence or the threat of its use;    

  b) with the use of weapons or special means;     

 c) for the purpose of obtaining benefits and advantages for oneself or other persons or organizations, or harming other persons or organizations (Part 4 of Article 308 of the Criminal Code of the Republic of Kazakhstan).  

   The concept of "grave consequences" is considered in the analysis of abuse of official authority.   

  Abuse of power or official authority with the use of violence or with the threat of its use (paragraph "a" of Part 4 of Article 308 of the Criminal Code of the Republic of Kazakhstan) occurs when the actions of the perpetrator involve causing minor or moderate harm to the victim's health, restriction of his freedom, as well as the threat of physical violence. In cases where abuse of official authority was associated with murder or intentional infliction of serious harm to health, the act should be classified as a set of crimes under paragraph "a" of part 4 of art. 308 and art. 96 or 103 of the Criminal Code of the Republic of Kazakhstan.

The use of weapons or special means is understood as the illegal actual use of firearms or cold weapons, as well as special means (rubber sticks, handcuffs, tear gas, water cannons, etc.) for physical impact on the victim by causing death or harm to his health, as well as for mental impact by threatening to cause such harm, if the victim had there are grounds to believe that his life and health were in real danger (paragraph "b" of part 4 of art. 308).    

 The commission of this crime in order to extract benefits and advantages for oneself or other persons or organizations, or to cause harm to another person or organization, is an incentive related to the desire to obtain property benefits without illegal gratuitous circulation of funds for one's own benefit or for the benefit of third parties, as mentioned above (paragraph "c" of Part 4 of art. 308).     

 Abuse of power or official authority should be distinguished from abuse of official authority. The distinction is made according to the objective side - the nature of the act: in the first case, a socially dangerous act goes beyond the limits of official competence, in the second - it is committed within its limits.This provision is supplemented by an indication that abuse of official authority can be committed both through action and inaction, while abuse of power or official authority is possible only through action. On the subjective side, a constructive sign of abuse of official authority is the goal of extracting benefits and advantages for oneself or other persons or organizations, or harming other persons or organizations. In case of abuse of power or official authority, such a goal is a particularly qualifying feature (paragraph "b" of Part 4 of Article 308 of the Criminal Code).    

  The deliberate departure of a person beyond the limits of the powers granted to him indicates his increased public danger, a deeper and more deliberate disregard for service, for the activities of the state apparatus, rather than abuse of official authority, which is committed within the competence of a person authorized to perform public functions, or by a person equated to him.  

    Abuse of power or official authority differs from the crime provided for in Part H of Article 145 of the Criminal Code of the Republic of Kazakhstan, with the only difference that actions resulting in violation of the inviolability of the home are a special type of act provided for in Article 308 of the Criminal Code.    

 A correct understanding of the object and subject of abuse of power or official authority is sufficient reason to distinguish between this crime and abuse of authority by employees of private security services, provided for in Article 230 of the Criminal Code "Abuse of authority by employees of private security services."  

   The main difference between the crimes being compared lies in the object of the encroachment and the subject of these crimes. The object of abuse of authority by employees of private security services is the established procedure for carrying out private security activities.    

  The subject of the crime under Article 230 of the Criminal Code is the head or employee of a private security service.

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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