Comment to Article 41. Deprivation of the right to hold a certain position or engage in certain activities of the Criminal Code of the Republic of Kazakhstan of the Criminal Code of the Republic of Kazakhstan
1. The deprivation of the right to hold a certain position or engage in a certain activity consists in the prohibition to hold certain positions in the civil service, in local government bodies, or to engage in certain professional or other activities.
2. Deprivation of the right to hold a certain position or engage in a certain activity is established for a period of one to five years as the main type of punishment and for a period of six months to three years as an additional type of punishment.
For the commission of corruption crimes, deprivation of the right to hold certain positions or engage in certain activities is established for a period of three to ten years as the main type of punishment and for a period of one to seven years as an additional type of punishment.
3. Deprivation of the right to hold certain positions or engage in certain activities as an additional punishment may also be imposed in cases where it is not provided for by the relevant article of the Special Part of this Code as punishment for the relevant crime, if, taking into account the nature and degree of public danger of the crime committed and the identity of the perpetrator, the court finds it impossible for him to retain the right to hold certain positions or engage in certain activities.
4. When this punishment is imposed as an additional one to restriction of liberty, arrest, detention in a disciplinary military unit or imprisonment, it applies to the entire time of serving the specified basic types of punishment, but its term is calculated from the moment they are served. In the case of deprivation of the right to hold certain positions or engage in certain activities as an additional type of punishment to other basic types of punishment, as well as in the case of a suspended sentence, its term is calculated from the moment the sentence enters into force.
Notes.
1. Crimes containing signs of extremism are recognized as crimes provided for in Articles 164, 168-171, 233-3, 236, parts two and three of Article 337, Article 337-1 of this Code.
The commented article contains a number of provisions that were absent in the previous criminal legislation. The legislative amendments include the prohibition of holding certain positions in the civil service and in local government bodies and the replacement of the concept of "certain activities" with the concept of "certain professional and other activities." The article delineates the terms of this type of punishment in cases of its appointment as primary and additional. Without reference to other normative legal acts, which was typical of the criminal legislation in force earlier, the procedure for calculating the terms of this type of punishment is established, and the possibility of applying the deprivation of the right to hold a certain position or engage in a certain activity as an additional punishment is provided.
Certain positions are defined as a range of positions that are designated by regulations or have identification features that make it possible to accurately identify the content of the injunction.
The prohibition to engage in certain professional activities applies to the type of activity for which professional training is required, or this activity includes types of work that require special training or allow for certain actions or decisions, the nature of which is established by regulatory legal acts.
The term of deprivation of the right to hold certain positions or engage in certain activities, designated as the main punishment, is calculated from the moment the sentence enters into force.
In accordance with article 41 of the Criminal Code, in each case of a person committing a crime related to the performance of duties in a position or engaging in a certain activity, the court is obliged, taking into account the nature of the crime committed, to discuss the issue of depriving the defendant of the right to hold certain positions or engage in certain activities. When imposing this punishment, the positions or type of activity must be specified specifically in the operative part of the sentence. It is unacceptable, in particular, to deprive a defendant of the right to work in a particular industry or in any institutions or organizations without a specific range of positions that he is not entitled to hold. The fact that by the time of sentencing, the defendant no longer held a position or was not engaged in activities related to the commission of the crime is not an obstacle to the application of this additional punishment. Deprivation of the right to drive vehicles may be imposed by a court as an additional punishment in accordance with the sanction of the criminal law, regardless of the fact that this person did not have this right at all or had already been deprived of this right by way of administrative penalty.
Unlike a fine, this penalty may also be imposed as an additional punishment in cases where it is not specified in the article of the Special Part of the Criminal Code as punishment for the relevant crime, if, taking into account the nature and degree of public danger of the crime committed and the identity of the perpetrator, the court finds it impossible for him to retain the right to hold certain positions or engage in certain activities. The legislator, in paragraph 1 of the note, defined the range of crimes containing signs of extremism. These include 9 compositions:
- Article 164 of the Criminal Code of the Republic of Kazakhstan (incitement of social, national, tribal, racial or religious hatred);
168 of the Criminal Code of the Republic of Kazakhstan (forcible seizure of power or forcible retention of power or 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);
169 of the Criminal Code of the Republic of Kazakhstan (armed rebellion);
170 of the Criminal Code of the Republic of Kazakhstan (calls for the violent overthrow or change of the constitutional order or the violent violation of the unity of the territory of the Republic of Kazakhstan);
- Article 171 of the Criminal Code of the Republic of Kazakhstan (sabotage);
- Articles 233-3 of the Criminal Code of the Republic of Kazakhstan (financing of extremism or terrorist activities);
- Article 236 of the Criminal Code of the Republic of Kazakhstan (organization of an illegal paramilitary group);
- Parts 2 and 3 of Articles 337 of the Criminal Code of the Republic of Kazakhstan (Part 2 - creation of a public association proclaiming or practicing racial, national, tribal, social, class or religious intolerance or exclusivity, calling for the violent overthrow of the constitutional order, undermining the security of the state or encroachments on the territorial integrity of the Republic of Kazakhstan, as well as the leadership of such by association, part 3
- active participation in the activities of the associations specified in the first or second parts of this article);
337-1 of the Criminal Code of the Republic of Kazakhstan (organization of activities of a public or religious association or other organization after a court decision banning their activities or liquidation in connection with their extremism).
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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