Comment to article 339. Obstruction of justice and preliminary investigation of the Criminal Code of the Republic of Kazakhstan of the Criminal Code of the Republic of Kazakhstan

     1. Interference in any form with the activities of the court in order to obstruct the administration of justice —      

is punishable by a fine in the amount of two hundred to three hundred minimum 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 three to six months, or by imprisonment for a term of up to two years.    

2. Interference in any form with the activities of the prosecutor, investigator or person conducting the inquiry in order to prevent a comprehensive, complete and objective investigation of the case. —    

is punishable by a fine in the amount of one hundred to two hundred minimum 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 community service for a period of one hundred eighty to two hundred forty hours, or by arrest for a period of three to six months.   

  3. The acts provided for in the first or second parts of this Article committed by a person using his official position, —      

are punishable by a fine in the amount of five hundred to seven hundred monthly calculation indices or in the amount of the convicted person's salary or other income for a period of five to seven months, or by imprisonment for up to three years with deprivation of the right to hold certain positions or engage in certain activities for the same period or without it.

     In accordance with Article 77 of the Constitution of the Republic of Kazakhstan, judges are independent in the administration of justice and obey only the Constitution and the law. Any interference with the activities of the court in the administration of justice is unacceptable and entails liability under the law. Judges are not accountable for specific cases.     

The independence of judges is a constitutional principle of justice, which means that judges resolve criminal and civil cases on the basis of the law in accordance with their legal awareness, in conditions that exclude outside influence on them.    

 In accordance with the Decree of the President of the Republic of Kazakhstan, which has the force of the Constitutional law, "On Courts and the status of judges in the Republic of Kazakhstan" dated December 20, 1995, No. 2694, justice in the Republic of Kazakhstan is administered only by the court. The courts exercise their authority on behalf of the Republic, regardless of anyone's will, in strict accordance with the Constitution and the laws of the Republic. Judicial power is exercised through civil, criminal and other forms of legal proceedings established by law. No one has the right to interfere in the administration of justice or exert any influence on a judge. Such actions are prosecuted by law. Z000000132_

    The public danger of interference in the activities of the court, the bodies of preliminary investigation and inquiry is not only that the normal functioning of these bodies is disrupted, but at the same time the constitutional foundations of justice and investigation are undermined, the authority of the court, investigator, inquirer suffers, and legality turns into lawlessness.   

  The object of the crime provided for in Part 1 of Article 339 of the Criminal Code is the normal activity of the court in the administration of justice.    

The direct object of interference in the activities of the prosecutor, investigator or person conducting an inquiry (Part 2 of Article 339 of the Criminal Code) is the normal activities of the prosecutor's office, investigation and inquiry bodies for the administration of justice.  

   The objective side of the crime is interference in the activities of the court. Interference should be understood as any form of influence on a judge or juror in order to obstruct their administration of justice in a particular case. It can be expressed in various forms: in giving direct instructions, in the form of requests, blackmail, persuasions, promises to provide any services, patronize, etc. Interference in the activities of the court can be carried out verbally (by phone, at a meeting), in writing, etc. The impact can be both overt and covert. For example, at a meeting – by criticizing the decision that the judge is going to make on a particular case or material. It can be carried out by contacting directly the judge, juror or their relatives with a request to exert influence aimed at ensuring that the court decides on the case in favor of a particular party to the trial.    

 In order to recognize the existence of the considered corpus delicti in an act, it is necessary to establish that interference in the activities of the court was unlawful, i.e. when the person influencing the decision of the issue in court did not have the right to do so.    

  It is considered legitimate to influence the work of the court in the form of recommendations on the consideration of criminal, civil or administrative cases, as well as in the form of instructions contained in the decisions of judicial boards, when considering cases on appeal or by way of supervision. It is also possible to recognize as legitimate, for example, consultations and instructions in oral or written form, which are given by an experienced judge to a young judge undergoing an internship when considering a specific case or materials, if they are given in order to avoid judicial errors. Criminal liability is excluded when the court gives instructions on specific cases when returning a criminal case for further investigation, or when the prosecutor or the head of the investigative department or the inquiry department gives instructions aimed at ensuring a full, comprehensive and objective investigation of the criminal case. The petitions of the participants in the process and their expressions of opinion during the debate of the parties are recognized as legitimate. Such behavior bears an external resemblance to interference in the activities of the court, but it is legitimate, since it is provided for by the criminal procedure legislation.  

   Interference may be expressed in influencing a judge, judges, or jurors when considering criminal, civil, or administrative cases (including economic disputes, and when considering other materials). For example, a petition or demand to acquit a guilty person or convict an innocent person, impose a more lenient punishment than is prescribed by law, impose a suspended sentence or apply a suspended sentence, rule in favor of the plaintiff or defendant, return the case for additional investigation, etc.  

    The methods of illegal influence can also be different: through persuasion, deception, abuse of trust, blackmail, threats of disclosure of compromising information.    

  Obstruction of justice can be recognized, for example, as a power outage in the premises where the trial is taking place, damage to a vehicle, which is necessary for the court and the participants in the process to carry out procedural activities. The Supreme Court of the Republic regards as interference in the activities of the court the taking over of control of a case pending before the court by State bodies or their officials.   

   The composition of the crime in question covers interference in the activities of the court both for the purpose of mitigation and for the purpose of increasing responsibility and punishment.   

   Interference in the activities of the court presupposes unlawful influence on those who administer justice. Such a person can be a judge working in any court of the judicial system of our country: district, city, regional or Supreme Court. After the jury trial is functioning in our country, the juror will be recognized as the person who administers justice at the trial stage. Unlawful influence on other employees of the court (secretary of the court session, consultant, bailiff, bailiff) does not constitute an element of this crime. Such an act, if there are necessary signs, can be qualified as a crime against the order of government (Articles 321, 327 of the Criminal Code) or as a crime against the person. Interference in the activities of the arbitration court does not provide for liability under the rule in question, since the arbitration court is not part of the judicial system, which is part of the country's state apparatus.   

  Officials against whom unlawful influence may be exerted in accordance with the second part of Article 339 of the Criminal Code include the prosecutor, the investigator, and the person conducting the inquiry. The concept of "prosecutor" covers not only prosecutors of any level (district, city, region, Prosecutor General of the Republic of Kazakhstan), but also their deputies, assistants, as well as prosecutors of departments and departments.   

   Interference in the activities of a prosecutor should be understood in any form as an unlawful influence on him with a request or requirement to perform actions of an illegal nature or to refrain from committing actions that the prosecutor is obligated to commit. Responsibility under the criminal law norm under consideration occurs if there has been interference in the exercise by the prosecutor of such functions that contribute to the administration of justice. For example, supervision of the conduct of inquiries, preliminary investigations, and the consideration of civil, criminal, and administrative cases in court.   

Interference in the activities of a prosecutor should be understood in any form as an unlawful influence on him with a request or requirement to perform actions of an illegal nature or to refrain from committing actions that the prosecutor is obligated to commit. Responsibility under the criminal law norm under consideration occurs if there has been interference in the exercise by the prosecutor of such functions that contribute to the administration of justice. For example, supervision of the conduct of inquiries, preliminary investigations, and the consideration of civil, criminal, and administrative cases in court.   

   Interference in the prosecutor's general supervision activities may contain signs of the objective side of the type of crime in question in cases where, as a result of a general prosecutor's review, facts of the commission of a crime or other facts and events that should be considered in court are revealed. Interference in the activities of the prosecutor can be recognized, for example, the requirement of an official not to take into custody a person suspected of committing a crime, a request during the consideration of a criminal case in court not to recommend the appointment of strict penalties to the defendant, to refrain from protesting, etc.

    Interference in the investigation of a criminal case is possible in the form of exerting pressure on the prosecutor, investigator or the person conducting the inquiry when deciding on the choice of a preventive measure, on bringing as an accused, on the qualification of a crime committed by the perpetrator, on release from criminal liability, on termination of the criminal case or suspension of proceedings.  

   Interference means influencing or influencing the activities of the preliminary investigation bodies. Interference may also be legitimate. For example, a superior officer may interfere in the course of a preliminary investigation or an inquiry conducted by an investigator or inquirer in connection with the incorrect course of the preliminary investigation by giving written instructions (articles 63, 66 of the CPC) in order to eliminate deficiencies. Therefore, Article 339 of the Criminal Code provides for liability only for unlawful interference.   

   The composition of the crime in question takes place only in cases of interference in the work of the court, in the activities of the investigator or the person conducting the inquiry, in a specific case or material. Appeals or demands, for example, from the prosecutor or akim, to fight crime more actively, to take the guilty into custody more often, to punish criminals more severely, which are of a general nature and do not relate to specific cases, do not form part of the crime under consideration.    

 Interference in the activities of the court and the bodies involved in the administration of justice is considered to be over at the time of the commission of these actions, regardless of whether the perpetrator has achieved his goal or his attempt to influence the administration of justice has been unsuccessful. The occurrence of consequences in the form of an unjustified sentence or the unlawful release of a person who has committed a crime from criminal liability entails the qualification of the actions of the perpetrator as a set of crimes: according to art. 339 and Articles 345 or 350 of the Criminal Code.   

   Interference with the activities of a court, prosecutor, investigator or inquirer in the administration of justice or a preliminary investigation through the use of mental violence will not contain signs of this crime, since threatening these persons, as well as using physical violence to obstruct the administration of justice, entails liability under Article 341 of the Criminal Code.    

 The subjective side of this crime is characterized by intent. The perpetrator is aware that he is committing a socially dangerous act by obstructing the administration of justice.    

  Article 339 of the Criminal Code specifies as a mandatory feature the purpose of obstructing the administration of justice or a comprehensive, complete, objective investigation of the case. Therefore, when applying Article 339 of the Criminal Code, the court and law enforcement agencies should establish the existence of this particular purpose, since it is provided for by law. If the interference took place for a different purpose, liability under Article 339 of the Criminal Code is excluded. For example, when an intervention is carried out in order to avoid judicial errors and to prevent violations of the rule of law.  

   The motives for obstructing the administration of justice may be different and they do not affect qualifications. This crime may be committed for personal reasons, misinterpreted interests of the service, self-interest, etc. They can only affect the punishment.   

  A sane person who has reached the age of 16 is recognized as the subject of this crime.   

   Part 3 of the article in question of the Criminal Code provides for liability for the commission of the specified act by a person using his official position. This crime may be committed by an official, as well as other employees of state bodies, local self-government bodies or the Armed Forces of the Republic of Kazakhstan using their official position. The subject of the crime provided for in part three of art. 339 of the Criminal Code, most often there is a person on whom the judge or employees of other law enforcement agencies who make decisions on a criminal case are in a dependent position. For example, a prosecutor is in a position of dependence on a superior prosecutor. The investigators and interrogators of the Department of Internal Affairs are in a dependent position both from their immediate superiors – the heads of the investigative department or the Department of inquiry, and from the heads of the Department of Internal Affairs – the Department of Internal Affairs - the Department of Internal Affairs.    

  In cases where interference in the activities of the court, prosecutor's office, investigator or a person conducting an inquiry was accompanied by murder, injury to health, destruction or damage to property, the act should be classified according to the totality of crimes: under Articles 339, 340, 341 or 187 of the Criminal Code.  

   In cases where a higher official with the authority to give instructions on a specific criminal case, abusing his official powers, being interested in the outcome of the case, gives instructions contrary to the law, his act should also be considered as illegal interference in the activities of the court for the administration of justice or in the activities of the prosecutor, investigator or person conducting the inquiry., for a comprehensive, complete and objective investigation of the case. The criminal behavior of such a person should be qualified under part three of the specified article 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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