Commentary on Article 154 of the Criminal Code of the Republic of Kazakhstan. Obstruction of the Lawful Activities of Employees’ Representatives
Obstruction by an official, through the use of their official position, of the lawful activities of employees’ representatives, as well as interference by an official, through the use of their official position, in their lawful activities, resulting in a substantial violation of their rights and legitimate interests,
shall be punishable by a fine in an amount of up to one hundred and sixty monthly calculation indices, or corrective labour in the same amount, or community service for a period of up to one hundred and sixty hours, or arrest for a period of up to forty days, with deprivation of the right to hold certain positions or engage in certain activities for a period of up to three years.
The public danger of the criminal misdemeanour lies in the violation of the right of citizens of the Republic of Kazakhstan, guaranteed by the Constitution, to associate in trade unions and other associations representing the interests of employees.
In accordance with Article 23 of the Constitution of the Republic of Kazakhstan, citizens of the Republic of Kazakhstan have the right to freedom of association. Military personnel, employees of national security bodies and law enforcement agencies, as well as judges, must not be members of political parties or trade unions or publicly express support for any political party. The activities of trade unions are regulated by the Law of the Republic of Kazakhstan dated 27 June 2014 “On Trade Unions”.
The object of the criminal misdemeanour under consideration is the aforementioned constitutional right.
In accordance with subparagraph 44) of paragraph 1 of Article 1 of the Labour Code, employees’ representatives are trade unions and their associations, and, in their absence, elected representatives elected and authorised at a general meeting (conference) of employees by a majority vote of the participants, provided that at least two-thirds of the employees (conference delegates) are present, in the cases stipulated by this Code.
According to subparagraph 6) of Article 1 of the Law of the Republic of Kazakhstan “On Trade Unions”, a trade union is a public association with fixed membership, voluntarily established on the basis of the commonality of labour, production and professional interests of citizens of the Republic of Kazakhstan for the representation and protection of the labour and socio-economic rights and interests of its members.
In accordance with subparagraph 41) of paragraph 1 of Article 1 of the Labour Code, employer’s acts are orders, directives, instructions, rules, regulations, shift schedules, rotational work schedules and leave schedules issued by the employer.
According to Article 11 of the Labour Code, an employer shall issue acts within the scope of its competence in accordance with the Labour Code and other regulatory legal acts of the Republic of Kazakhstan, the employment contract, agreements and the collective agreement.
The procedure for taking into account the opinion of, or obtaining agreement with, employees’ representatives when issuing employer’s acts is regulated by Article 12 of the Labour Code of the Republic of Kazakhstan.
The objective elements of the criminal misdemeanour consist of: a) actions or omissions aimed at obstructing the lawful activities of employees’ representatives by an official through the use of their official position; b) interference in their lawful activities by an official through the use of their official position; c) consequences in the form of a substantial violation of their rights and legitimate interests; d) a causal relationship between the conduct of the guilty persons and the occurrence of the consequences.
Obstruction should be understood as the creation of various hindrances and obstacles to the exercise of the lawful activities of employees’ representatives, for example, an unjustified refusal to register a trade union or an unjustified prohibition of its activities, or the activities of associations and (or) individuals and (or) legal entities authorised by employees.
Interference in the lawful activities of employees’ representatives should be understood as any influence exerted on the heads of trade unions and associations and (or) individuals and (or) legal entities authorised by employees, or their members, with the aim of changing the direction of the activities of such an association. Such influence may take any form: oral, written, or communicated by telephone, both in an official and non-official setting. Critical remarks, advice and wishes of a general nature concerning the activities of employees’ representatives do not constitute the elements of the offence under consideration.
By its legal construction, the elements of the criminal misdemeanour are material. The misdemeanour is deemed completed from the moment of a substantial violation of the rights and legitimate interests of employees’ representatives, that is, from the moment when consequences undesirable to them occur, for example, the disruption of a lawful strike for this reason.
From the subjective side, the act is characterised by guilt in the form of direct intent, meaning that the person is aware that they are violating the right to freedom of lawful activities of trade unions and other associations of employees’ representatives guaranteed by the Constitution of the Republic of Kazakhstan, foresees that the actions undertaken may or will inevitably result in negative consequences, and desires the occurrence of such consequences.
The subject is special — an official who uses their official position to create hindrances and obstacles to the lawful activities of public associations.
The powers of the subject are determined by their competence established by the Labour Code and other regulatory legal acts, which regulate the rights and duties of a person holding a particular position or temporarily performing the duties of that position or performing them under special authorisation. Therefore, the use by a person of their official powers should be understood only as an act arising from the powers vested in that person by virtue of the position they hold.
The act provided for in Article 154 of the Criminal Code is classified as a criminal misdemeanour.
Commentary of 2021 on the Criminal Code of the Republic of Kazakhstan by Isidor Shamilovich Borchashvili, Honoured Figure of Kazakhstan, Doctor of Law, Professor, Academician of the Kazakhstan National Academy of Natural Sciences, Member of the Scientific Advisory Councils under the Constitutional Council of the Republic of Kazakhstan and the Supreme Court of the Republic of Kazakhstan, Member of the Working Group on the Reform of the Law Enforcement System under the Security Council of the Republic of Kazakhstan, Honoured Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.
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