Commentary on Article 155. Obstruction of the Organization or Conduct of a Peaceful Assembly or Participation Therein of the Criminal Code of the Republic of Kazakhstan
1. Unlawful obstruction of the organization or conduct of a peaceful assembly, another lawful public event, or participation therein, or coercion to participate therein —
shall be punishable by a fine in an amount of up to two hundred monthly calculation indices, or corrective labour in the same amount, or community service for a period of up to one hundred and eighty hours, or arrest for a period of up to fifty days.
2. The same act committed by an official through the use of his or her official position, or involving the use of violence or the threat of its use —
shall be punishable by a fine in an amount of up to three thousand monthly calculation indices, or corrective labour in the same amount, or restriction of liberty for a period of up to three years, or deprivation of liberty for the same period, with deprivation of the right to hold certain positions or engage in certain activities for a period of up to three years or without such deprivation.
The public danger of the act provided for in Article 155 of the Criminal Code (Part 1 — a criminal misdemeanour, Part 2 — a crime) consists in the violation of the right to freedom of assemblies, rallies, demonstrations, marches and picketing guaranteed by the Constitution of the Republic of Kazakhstan.
In accordance with Article 21 of the International Covenant on Civil and Political Rights of 16 December 1966, the right to peaceful assembly is recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national and public security, public order, the protection of public health and morals, or the protection of the rights and freedoms of others.
Article 32 of the Constitution of the Republic of Kazakhstan establishes that citizens of the Republic have the right to assemble peacefully and without weapons, and to hold assemblies, rallies and demonstrations, marches and picketing. In accordance with the constitutional provision, the exercise of this right may be restricted by law in the interests of national security, public order, the protection of health, and the protection of the rights and freedoms of others. The procedure for organizing and holding assemblies, rallies, demonstrations, marches and picketing is regulated by the Law of the Republic of Kazakhstan dated 25 May 2020, “On the Procedure for Organizing and Holding Peaceful Assemblies in the Republic of Kazakhstan”.
Article 19 of the Law of the Republic of Kazakhstan “On Public Associations” also grants public associations the right to organize and hold peaceful assemblies. The procedure for holding assemblies is regulated by the Code of Administrative Offences of the Republic of Kazakhstan.
An application for holding an event is submitted to the executive body by interested organizations. It must be set out in writing, indicating the purpose, form, location, time of the event, the route of movement, and information about the organizers. The event must be held in strict accordance with the information set out in the application, while the purpose of holding the event must not contradict the Constitution of the Republic of Kazakhstan or threaten public order and the safety of citizens.
The object of this act is the aforementioned constitutional right to organize and hold a peaceful assembly or another lawful public event, or to participate therein.
In accordance with subparagraph 1) of Article 1 of the Law “On the Procedure for Organizing and Holding Peaceful Assemblies in the Republic of Kazakhstan”, a peaceful assembly is a public event that is peaceful, non-violent and unarmed in nature, does not pose a threat to the interests of national security, public order, the protection of health, the protection of public morals, or the rights and freedoms of others, and is held by citizens of the Republic of Kazakhstan in the form of an assembly, rally and demonstration, march or picketing.
Lawful public events include demonstrations, assemblies, rallies, picketing and marches.
A demonstration is the movement of a citizen or a group of citizens of the Republic of Kazakhstan at a specified time along a specified route for the purpose of publicly expressing an opinion on socially significant issues and (or) the actions (inaction) of individuals and (or) bodies and organizations, carried out using vehicles, with or without the use of sound-amplifying technical equipment, posters, banners and other means of visual agitation, with or without the presentation of demands (subparagraph 5) of Article 1 of the aforementioned Law).
An assembly is the joint presence of citizens of the Republic of Kazakhstan at a specified place and at a specified time for the purpose of collectively and publicly discussing socially significant issues and (or) the actions (inaction) of individuals and (or) bodies and organizations (subparagraph 7) of Article 1 of the aforementioned Law).
A rally is the joint presence of citizens of the Republic of Kazakhstan at a specified place and at a specified time for the purpose of publicly expressing an opinion on socially significant issues and (or) the actions (inaction) of individuals and (or) bodies and organizations, carried out with or without the use of sound-amplifying technical equipment, posters, banners and other means of visual agitation, with or without the presentation of demands (subparagraph 8) of Article 1 of the aforementioned Law).
Picketing is the presence of one citizen of the Republic of Kazakhstan at a specified place and at a specified time for the purpose of publicly expressing an opinion on socially significant issues and (or) the actions (inaction) of individuals and (or) bodies and organizations, carried out without movement and without the use of sound-amplifying technical equipment, with or without the use of posters, banners and other means of visual agitation (subparagraph 10) of Article 1 of the aforementioned Law).
A march is the movement of a citizen or a group of citizens of the Republic of Kazakhstan without the use of vehicles, at a specified time along a specified route, for the purpose of publicly expressing an opinion on socially significant issues and (or) the actions (inaction) of individuals and (or) bodies and organizations, carried out with or without the use of sound-amplifying technical equipment, posters, banners and other means of visual agitation, with or without the presentation of demands (subparagraph 12) of Article 1 of the aforementioned Law).
The objective elements of the criminal offence under consideration consist of three alternative acts: 1) unlawful obstruction of the holding of a peaceful assembly or another lawful public event; 2) unlawful obstruction of participation therein; 3) coercion to participate therein.
Unlawful obstruction should be understood as the creation of various impediments and obstacles to the lawful holding of a peaceful assembly or another lawful public event, for example, an unjustified refusal to authorize the holding of the aforementioned events; unjustified setting up of barriers along the route of an event being held, or the creation of impediments and obstacles to participation therein, for example, a direct or disguised prohibition on participating in the aforementioned events.
Coercion to participate in the aforementioned events should be understood as physical or psychological influence exerted on individuals for the purpose of compelling them to participate in an assembly, rally, demonstration, march or picketing.
The composition of the criminal offence is formal in its structure. The criminal offence is deemed completed from the moment the actions specified in the disposition of the Article are committed.
The subjective element is characterized by direct intent, that is, the person is aware that he or she is violating the right to freedom of assemblies, rallies, demonstrations and picketing guaranteed by the Constitution, foresees the possibility or inevitability of the occurrence of consequences and desires their occurrence.
The subject of the act under consideration is general — a sane natural person who has attained the age of 16.
In Part 2 of Article 155 of the Criminal Code, the legislator has established criminal liability for the same acts committed by an official through the use of his or her official position.
The concept of an official who uses his or her position is disclosed in the commentary to subparagraph 26) of Article 3 of the Criminal Code (see also the commentary to Article 361 of the Criminal Code).
Another qualifying feature is the use of physical or psychological violence or the threat of its use.
Physical violence entails the infliction of beatings, the causing of minor or moderate bodily harm, unlawful deprivation of liberty, etc. In this case, additional qualification under the relevant Articles (Article 107 of the Criminal Code) is not required. In the event of the infliction of grievous bodily harm, the act should be classified under the cumulative application of Articles 155 and 106 of the Criminal Code.
A threat of violence entails psychological influence intended to obstruct the holding of an assembly, rally, demonstration, march or picketing, or participation therein.
The act provided for in Part 1 of Article 155 of the Criminal Code is classified as a criminal misdemeanour.
The act provided for in Part 2 of Article 155 of the Criminal Code is classified as a crime of medium gravity.
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 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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