Comment to Article 315. Inaction in the service of the Criminal Code of the Republic of Kazakhstan of the Criminal Code of the Republic of Kazakhstan

     1. Inaction in the service, that is, failure by a person authorized to perform state functions, or a person equated to him, to perform his official duties in order to extract benefits and advantages for himself or other persons or organizations, or to harm other persons or organizations, if this entailed a significant violation of the rights and legitimate interests of citizens or organizations, or legally protected interests of society or the state, -    

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

2. The same act committed by an official, -    

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

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

     The object of the crime in question is the normal, legally regulated activities of the State apparatus and the related interests of the civil service and public administration. The legitimate interests of citizens or organizations should be recognized as an additional object.    

On the objective side, inaction in the service consists of a combination of the following features::     

a) failure of a person authorized to perform state functions, or a person equivalent to him, to perform his official duties;     

b) the occurrence of socially dangerous consequences in the form of a significant violation of the rights and legitimate interests of citizens or organizations, or the legally protected interests of society or the state (see the analysis of art. 307 of the Criminal Code);     

c) the existence of a causal relationship between the act of a special subject of the crime and the occurrence of harmful consequences.      A crime can be committed only in the form of inaction. At the same time, the special subject of the crime does not perform such actions that fall within the scope of his official duties, and in specific conditions this person has a real opportunity to commit them. Failure by a person authorized to perform public functions, or by a person equated to him, to perform a certain action or failure to take necessary measures must be in conflict with established laws or other regulatory legal acts, or with his official duties. A crime is considered completed from the moment of the onset of socially dangerous consequences in the form of a significant violation of the rights and legitimate interests of citizens or organizations, or the legally protected interests of society or the state.     

Between the failure to perform official duties and the subsequent consequences,

- a significant violation of the rights and legitimate interests of citizens or organizations,

- a causal relationship must be established. Its absence precludes criminal liability.    

 The specific nature of the causal relationship in the composition of inaction in the service is that the cause is the failure of a person authorized to perform state functions, as well as a person equivalent to him, to fulfill his official duties stipulated in the law, the consequence is harm, resulting in 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 failure of a person to perform his official duties caused harm, which was a natural, and not an accidental consequence of inaction in the service. Inaction of a person should be not only one of the necessary conditions, but also the reason for the result. The causal relationship between the act of a person and the consequences resulting from its commission is an obligatory sign of the objective side of the corpus delicti. In the absence of a causal relationship, the consequences that have occurred cannot be blamed.    

The subject of inaction in service under Part 1 of Article 315 of the Criminal Code is a person authorized to perform state functions or a person equivalent to him, under Part 2 of the specified norm – an official, and under part 3 of the mentioned article – a person holding a responsible public position (see Article 307 of the Criminal Code).      

Part 4 of Article 315 of the Criminal Code of the Republic of Kazakhstan provides for responsibility for the commission of this crime, which entailed grave consequences, which were considered in detail when analyzing the composition of abuse of official authority (Article 307 of the Criminal Code).

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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