Commentary on Article 252. Abuse of Authority by Employees of Private Security Services of the Criminal Code of the Republic of Kazakhstan

1. Abuse of the powers granted to the head or employee of a private security service in accordance with a licence, contrary to the objectives of their activities, if such an act is committed through the use of violence or the threat of its use, —

shall be punishable by a fine in an amount of up to five thousand monthly calculation indices, or corrective labour in the same amount, or community service for a period of up to one thousand two hundred hours, or restriction of liberty for a period of up to five years, or imprisonment for the same period, with deprivation of the right to hold certain positions or engage in certain activities for a period of up to five years or without such deprivation.

2. The same act, committed with the use of weapons or special equipment, or resulting in grave consequences, —

shall be punishable by imprisonment for a period of three to eight years, with deprivation of the right to hold certain positions or engage in certain activities for a period of up to five years.

The public danger of abuse of authority by employees of private security services is обусловлено by the fact that the head or employee of such services commits actions that go beyond the limits of the powers granted to them, as a result of which harm is caused to the rights and legitimate interests of citizens through the use of violence against them.

The object of the crime under consideration is the procedure for carrying out private security activities established by law.

The additional object is the rights and legitimate interests of the individual (health, safety and personal inviolability).

The objective element is characterised by an act consisting of exceeding the powers granted for carrying out private security activities, contrary to the objectives of such activities, accompanied by the use of violence or the threat of its use.

According to the Law of the Republic of Kazakhstan dated 19 October 2000, “On Security Activities”, security activities mean the performance by individuals (individual entrepreneurs) and legal entities of activities involving the provision of services for the protection of the life, health and property of individuals, as well as the property of legal entities, against unlawful encroachments (security services).

A private security organisation is a commercial organisation that provides security services as its business activity.

The objective element of the crime is characterised by the commission of acts constituting an abuse by the head or employee of a private security service of their powers, contrary to the objectives of their activities, through the use of violence or the threat of its use.

Abuse of authority should be understood as the commission of actions that a person must perform in compliance with the conditions and procedures established by law, as well as the forms in which such actions must be performed, or the commission of actions against third parties.

The legislator links abuse of authority to the commission of such actions contrary to the objectives of security activities, that is, in violation of current legislation, interference in the competence of state bodies, violation of provisions set out in the constituent documents relating to the goals and objectives of the activities of a private security service, etc.

The actions of the head or employee of a private security service that go beyond the scope of competence provided for by the Law of the Republic of Kazakhstan “On Security Activities” should be regarded as an abuse of authority. Thus, Article 13-1 of the aforementioned Law establishes the following rights of employees holding the position of security guard in a private security organisation:

to assist internal affairs bodies in carrying out measures to ensure public order, including during the holding of entertainment, cultural and mass events and sports events;

to prevent and suppress criminal and administrative offences;

to use physical force and other means for the purpose of suppressing offences and detaining offenders, where it is not possible to achieve these objectives by other means. At the same time, measures exceeding those necessary for this purpose must not be permitted;

in cases provided for by laws, to detain and deliver to law enforcement agencies persons who have committed a criminal or administrative offence. Where necessary, if there are grounds to believe that the detained person possesses weapons or other dangerous and (or) prohibited items, to inspect the detained person's clothing or seize the specified items in accordance with the legislation of the Republic of Kazakhstan for transfer to law enforcement agencies or another state authority;

to assist in providing medical and other assistance to individuals who have suffered as a result of unlawful encroachments, road traffic accidents, natural disasters and other emergency situations;

to require individuals to comply with public order (paragraph 2).

Along with the above-mentioned rights, paragraph 3 of Article 13-1 of the Law of the Republic of Kazakhstan “On Security Activities” establishes the following duties for employees holding the position of security guard in a private security organisation:

“1) to observe the constitutional rights and freedoms of citizens;

to immediately inform internal affairs bodies of any known facts of crimes being prepared or committed;

2-1) to immediately inform internal affairs bodies when a security alarm is triggered at protected facilities on whose premises weapons, ammunition and explosives are located;

in cases provided for by legislation, to present, at the request of individuals, an identification document confirming their affiliation with a security activity entity;

to assist entities involved in the prevention of offences;

to explain to individuals detained for committing a crime or an administrative offence the grounds for the coercive measures applied to them”.

In addition, according to paragraph 4 of Article 17-1 of the Law “On Security Activities”, the heads of private security organisations and their employees are prohibited from:

carrying out procedural and other activities which, in accordance with the legislation of the Republic of Kazakhstan, fall within the exclusive competence of law enforcement and other state bodies;

appropriating the powers of law enforcement officers;

obstructing the lawful activities of law enforcement officers;

committing actions that humiliate the honour and dignity of a person or unlawfully restrict the rights and freedoms of an individual and citizen.

In cases where the offender commits actions in violation of the above-mentioned rights, duties and prohibitions, such actions constitute an abuse of official authority. For example, a private security guard detains a citizen who is not violating public order, or a person who has not committed a crime or an administrative offence; or conducts questioning of a witness, victim or suspect, conducts a confrontation or other investigative actions that do not fall within their competence.

The use of violence is also one of the mandatory elements of the objective side of this offence. Violence in the course of abuse of official authority may be physical or psychological.

The use of violence in the performance of official duties by the head or employee of a private security service includes tying up a person, handcuffing them, causing physical pain, inflicting beatings, causing minor or moderate bodily harm, and torture.

The infliction of the above-mentioned bodily harm is covered by the elements of the crime provided for in Part 1 of Article 252 of the Criminal Code of the Republic of Kazakhstan and does not require additional classification under articles concerning crimes against the person.

If the use of violence results in grievous bodily harm, the actions of the offender should be classified under Part 2 of the article under consideration on the grounds of “causing grave consequences”.

If the abuse of authority by the head or employee of a private security service through the use of violence results in grievous bodily harm under aggravating circumstances (Parts 2 and 3 of Article 106 of the Criminal Code), the act committed by them should be classified under the cumulative application of the relevant offences: under Parts 2 or 3 of Article 106 and Article 252 of the Criminal Code.

The threat of using violence means expressing an intention to use violence against the victim, including by means of words, gestures, displaying and pointing a weapon, threatening to cause bodily harm or to kill. At the same time, the threat must create in the victim a reasonable perception of the danger facing them and of the real possibility that the threat will be carried out immediately.

A threat to kill or cause grievous bodily harm, as well as other serious violence against a person or destruction of property, is also included in the meaning of a threat to use physical violence and does not require additional classification under Article 115 of the Criminal Code of the Republic of Kazakhstan.

Non-violent forms of abuse of authority do not constitute the elements of the offence under consideration. In the event of non-violent abuse of authority by the head or employee of a private security service, their actions are recognised as criminal only on the condition that they contain the elements of another crime.

By its structure, the crime provided for in Part 1 of Article 252 of the Criminal Code is a formal offence, that is, it is considered completed from the moment actions involving abuse of authority are committed contrary to the objectives of security activities and accompanied by the use of physical violence in any form or the threat of its use.

The subject is special and may only be a person who is an employee or head of a private security service.

According to Article 10 of the Law of the Republic of Kazakhstan “On Security Activities”, the head of a private security service is a person who organises the activities of a private security organisation and meets the requirements imposed on a security guard of a private security organisation.

Citizens of the Republic of Kazakhstan who are at least 19 years of age and have completed special security guard training may be employed as security guards in a private security organisation.

The subjective element of the crime is expressed in direct intent. The offender is aware that their actions go beyond the limits of their authority, foresees the possibility or inevitability of socially dangerous consequences and desires their occurrence.

Part 2 of Article 252 of the Criminal Code of the Republic of Kazakhstan provides for qualifying elements consisting of the commission of the act with the use of weapons or special equipment, or causing grave consequences.

Entities engaged in security activities have the right, in accordance with the procedure established by law, to arm their employees holding the position of security guard while performing their official duties.

The heads of security organisations, in accordance with the procedure established by law, issue weapons to full-time employees holding the positions of security guards for the period during which they perform their official duties. Weapons are issued after the completion of appropriate special training.

In the course of carrying out security activities, a private security guard has the right to use weapons and special equipment. The conditions, grounds and procedure for their use are defined in Article 19 of the Law “On Security Activities”. Thus, security guards of private security organisations have the right to use weapons and special equipment for the following purposes:

repelling attacks on a protected facility or its employees;

repelling attacks on a protected person;

detaining offenders, including where they offer resistance, for the purpose of delivering them to internal affairs bodies, if there are sufficient grounds to believe that they may escape or cause harm to others or themselves;

protection against animal attacks;

giving alarm signals or calling for assistance, as well as in cases of necessary defence and extreme necessity.

The use of special equipment and service weapons must be preceded by a clearly expressed warning to the person against whom they may be used.

The use of special equipment and service weapons against women, persons with obvious signs of disability and minors, where their age is known or apparent, is prohibited, except in cases where they commit an armed or group attack.

According to Article 18 of the Law of the Republic of Kazakhstan “On Security Activities”, entities engaged in security activities have the right to acquire, in accordance with the legislation, service smooth-bore long-barrelled and short-barrelled weapons, as well as firearms without a barrel, gas weapons capable of firing ammunition with traumatic effect, and electric weapons, as well as special equipment from legal entities acting as suppliers, after obtaining the appropriate licence.

The use of weapons should be understood as their actual use (firing a shot).

The use of special equipment (rubber batons, handcuffs, tear gas, etc.) should also be understood as their actual use for their intended purpose.

With regard to Part 2 of Article 252 of the Criminal Code, grave consequences may include the consequences specified in subparagraph 4) of Article 3 of the Criminal Code: the death of a person; the death of two or more persons; suicide by the victim or their close relative(s); the infliction of grievous bodily harm; the infliction of grievous bodily harm on two or more persons, etc. At the same time, intentional murder or the infliction of grievous bodily harm under aggravating or particularly aggravating circumstances requires additional classification under the cumulative application of the relevant offences.

Where grave consequences constitute a qualifying element, the crime is considered completed from the moment such consequences occur.

The act provided for in Part 1 of Article 252 of the Criminal Code is classified as a medium-gravity offence.

The act provided for in Part 2 of Article 252 of the Criminal Code is classified as a serious offence.

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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