Commentary on Article 362. Exceeding Authority or Official Powers of the Criminal Code of the Republic of Kazakhstan

1. Exceeding authority or official powers, that is, the commission by a person authorized to perform state functions, or a person equated to such a person, or an official, of actions that clearly go beyond the limits of their rights and powers and have resulted in causing substantial harm to the rights and legitimate interests of citizens or organizations, or to the legally protected interests of society or the state, —

shall be punishable by a fine in an amount of up to three thousand monthly calculation indices, or corrective labor in the same amount, or community service for a period of up to eight hundred hours, or restriction of liberty for a period of up to three years, or imprisonment for the same period.

2. Excluded by Law of the Republic of Kazakhstan dated 12 July 2018 No. 180-VI.

3. An act provided for in part one of this Article, committed by a person holding a responsible public position, —

shall be punishable by restriction of liberty for a period of up to seven 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.

4. Acts provided for in parts one or three of this Article, which have entailed grave consequences or have been committed:

1) with the use of violence or the threat of its use;

2) with the use of weapons or special means;

3) for the purpose of obtaining benefits and advantages for oneself or other persons or organizations, or causing harm to other persons or organizations;

4) in the performance of official duties established by a legislative act of the Republic of Kazakhstan on amnesty in connection with the legalization of property, —

shall be punishable by imprisonment for a period of five to ten years, and in the cases provided for in paragraph 3), with confiscation of property and lifelong deprivation of the right to hold certain positions or engage in certain activities.

The public danger of this crime is similar to the public danger of the crime provided for in Article 361 of the Criminal Code of the Republic of Kazakhstan.

The object of this crime is the normal functioning of the state apparatus of power and administration, established by the laws of the Republic of Kazakhstan and subordinate regulatory legal acts, in accordance with the legislation of the Republic of Kazakhstan on public service.

The additional object may include the constitutional rights and freedoms of individuals and citizens, their health, honor and dignity, as well as the legally protected interests of society and the state.

From the objective side, the act consists in exceeding authority or official powers by a person authorized to perform state functions, or a person equated to such a person, or an official, through actions that clearly go beyond the limits of their rights and powers and have resulted in causing substantial harm to the rights and legitimate interests of citizens or organizations, or to the legally protected interests of society or the state.

The objective side is characterized by the presence of three mandatory elements:

the act — the commission by persons specified in part 1 of the Article under commentary of actions that clearly go beyond the limits of their powers;

the consequence in the form of causing substantial harm to the rights and legitimate interests of citizens or organizations, or to the legally protected interests of society or the state;

the causal relationship between the action and the consequence that has occurred.

In order to determine whether the element of exceeding authority or official powers is present, it is necessary, first of all, to establish the scope of the governmental and official powers granted to the perpetrator.

The powers granted must be determined through the prism of the relevant sectoral law regulating the legal basis for the activities of the state body or organization in which the perpetrator serves. For example, when a district (city or regional) akim exceeds their authority, the scope of the governmental powers granted to them must be determined in accordance with the provisions of the Law of the Republic of Kazakhstan “On Local State Administration and Self-Government in the Republic of Kazakhstan”, which establish the rights, duties, tasks and functions of the respective akim. In the same manner, when an employee of the state fire protection service exceeds their authority, the scope of their governmental powers is determined in accordance with the Law of the Republic of Kazakhstan dated 11 April 2014 “On Civil Protection”.

The list of official powers granted to the perpetrator is determined by analyzing the order appointing them to the position, job descriptions, functional duties and other official documentation regulating the scope of their rights and obligations, tasks and functions.

When deciding whether the guilty person committed actions that clearly go beyond the limits of their powers, it is necessary, first and foremost, to determine these limits, that is, to establish the scope of the rights and obligations granted to the person, in other words, their official competence, which is enshrined in various regulatory legal and other acts (a law, resolution, directive, job description, order, employment contract, etc.).

The obvious (that is, clear and substantial) exceeding by a person of the limits of the powers granted to them is an evaluative concept and is established with regard to the specific circumstances of the case.

Exceeding authority or official powers may be expressed, for example, in the commission by the guilty person, while performing governmental or official duties, of actions that:

fall within the competence of another official (higher-ranking or equal in status);

may be performed only in the presence of special circumstances specified in a law or subordinate regulatory legal act (for example, the use of weapons in necessary defense in the absence of the required conditions);

are performed by a subject individually, whereas they may be performed only collectively or in accordance with an order;

are established by law to be performed in coordination with another official or body;

no one is entitled to perform under any circumstances (inflicting beatings on detained persons, causing harm to their health).

The elements of exceeding authority or official powers exist only when the unlawful actions committed by a person are connected with the performance of their official activities, that is, when, in relations with the victim, the perpetrator acts precisely in their capacity as an official. In other cases, the person may be held liable under other Articles of the Criminal Code. For example, a police officer who uses violence on the basis of personal hostility, without any connection to their official powers, bears criminal liability on general grounds as a private individual.

As regards such an element of the objective side as causing substantial harm to the rights and legitimate interests of citizens or organizations, or to the legally protected interests of society or the state, it has been examined in relation to Article 361 of the Criminal Code.

By its structure, the composition of this crime is material. The crime is considered completed from the moment the consequences specified in the disposition of the Article occur: causing substantial harm to the rights and legitimate interests of citizens or organizations, or to the legally protected interests of society or the state.

The consequences that have occurred must be causally connected with the actions of the guilty person that clearly go beyond the limits of their governmental or official powers.

From the subjective side, the crime is committed intentionally. The guilty person realizes that they are clearly exceeding the limits of the governmental or official powers granted to them and desires or consciously allows the causing of substantial harm to the rights and legitimate interests of citizens or organizations, or to the legally protected interests of society or the state.

Based on the disposition of Article 362, the motive of the crime is irrelevant for qualifying the act as exceeding authority or official powers.

The subject of the crime is a person authorized to perform state functions, or a person equated to such a person, the concepts of which are disclosed in paragraphs 27) and 28) of Article 3 of the Criminal Code. A detailed analysis of the elements contained in these concepts is provided in the commentary to Article 361 of the Criminal Code.

Part 3 of Article 362 of the Criminal Code provides for the composition of exceeding authority or official powers committed by a person holding a responsible public position (see the commentary to Article 361 of the Criminal Code).

The “Register of Positions of Political and Administrative Civil Servants” was approved by Decree of the President of the Republic of Kazakhstan dated 29 December 2015 and is reproduced in the commentary to Article 361 of the Criminal Code.

Part 4 of Article 362 of the Criminal Code provides for the following particularly qualifying circumstances of exceeding authority or official powers: acts that have entailed grave consequences or have been committed:

with the use of violence or the threat of its use;

with the use of weapons or special means;

for the purpose of obtaining benefits and advantages for oneself or other persons or organizations, or causing harm to other persons or organizations;

in the performance of official duties established by legislative acts of the Republic of Kazakhstan on amnesty in connection with the legalization of property.

The concept of “grave consequences” is provided in paragraph 4) of Article 3 of the Criminal Code.

The use of violence (paragraph 1) of part 4) in the composition of exceeding authority or official powers means the use of physical force or other violent actions associated with causing physical pain to the victim. The use of violence shall be understood to include inflicting beatings, intentionally causing minor harm to health, intentionally or negligently causing moderate harm to health (Article 107, parts 1 and 2 of Article 114 of the Criminal Code), causing torture (Article 110 of the Criminal Code), and intentionally causing serious harm to health without aggravating circumstances (part 1 of Article 106 of the Criminal Code).

The intentional infliction of serious harm to health under aggravating and particularly aggravating circumstances, as well as murder, committed when exceeding authority or official powers, must additionally be qualified under parts 2 and 3 of Article 106 or parts 1, 2 or 3 of Article 99 of the Criminal Code.

The threat of violence (paragraph 1) of part 4) means actual and real actions of the perpetrator intended to influence the victim in order to compel them to perform certain actions or refrain from performing them. With regard to Article 362 of the Criminal Code, the threat must be perceived by the victim as entirely feasible and real. Only such a threat is capable of exerting a certain psychological influence on the victim for the purpose of making them perform actions in favor of the perpetrator.

The distinctive feature of a threat of violence is that it is generally directed towards the future, that is, the perpetrator expresses an intention to actually use violence only after some time if the victim fails to comply with their demand. At the same time, violence may also be immediate in nature, that is, it may contain an outwardly expressed intention to carry it out immediately, at the very moment the demand is made, if it is not satisfied. Violence or the threat of its use serves as a means of committing the crime of exceeding authority or official powers.

The use of weapons or special means (paragraph 2 of part 4) shall be understood as actions of the perpetrator aimed at exceeding authority or official powers through the use of weapons or special means for physical (firing a shot, striking with the butt of an automatic rifle, etc.) or psychological (striking with a rubber baton near the victim's hand, firing a shot in close proximity but past the victim, and other actions, provided that the threat of using a weapon is perceived by the victim as real) influence on the victim.

In order to establish the qualifying circumstance under consideration, it is mandatory to determine that the weapons and special means were used by the guilty person in violation of the grounds, conditions and limits for their use established by legislation.

In cases where the subjects specified in parts 1 and 3 of the Article under commentary cause serious harm to health, as well as the death of the victim, but the said harm is caused under circumstances involving exceeding the limits of necessary defense or the measures necessary to detain a person who has committed a crime, the act must be qualified accordingly under Articles 102 or 103 of the Criminal Code; additional qualification under Article 362 of the Criminal Code is not required.

The concept of weapons is provided in the Law of the Republic of Kazakhstan dated 30 December 1998 “On State Control over the Circulation of Certain Types of Weapons”.

Paragraph 3) of part 4 of the Article under commentary provides for the qualifying circumstance of exceeding authority or official powers committed for the purpose of obtaining benefits and advantages for oneself or other persons or organizations, or causing harm to other persons or organizations.

In accordance with paragraph 29) of Article 3 of the Criminal Code, the crime provided for in paragraph 3) of part 4 of Article 362 of the Criminal Code is classified as a corruption-related crime.

Obtaining benefits for oneself or other persons or organizations shall be understood as the acceptance by the perpetrator of various services provided free of charge or services subject to payment, or the unlawful use of privileges granting preferential rights to property, construction and repair work, the provision of sanatorium or tourist vouchers, travel tickets, or the provision of loans or credits on preferential terms, etc. Obtaining advantages shall be understood as the receipt by the perpetrator of non-property benefits that may affect their privileged position within the work team (work performance, increased crime detection rates, etc.).

Paragraph 4) of part 4 of the Article under commentary establishes liability for acts provided for in parts 1 or 3 of Article 362 of the Criminal Code, committed in the performance of official duties established by legislative acts of the Republic of Kazakhstan on amnesty in connection with the legalization of property (see the commentary to paragraph 2) of part 4 of Article 361 of the Criminal Code).

It should be noted that the provision on liability for exceeding authority or official powers is a special provision in relation to the provision on the abuse by a person of their official powers, since it constitutes a special case of such abuse.

The difference is that, in the case of abuse of official powers, a person unlawfully uses the rights and powers granted to them by law, contrary to the interests of the service, whereas in the case of exceeding authority, the person commits actions that clearly go beyond the limits of their official competence. For the elements of abuse of official powers to exist, it is necessary that the guilty person commits the act for the purpose of obtaining benefits and advantages for themselves or other persons or organizations, or causing harm to other persons or organizations. Such a purpose is not required for the elements of exceeding authority or official powers.

In the event of exceeding authority or official powers committed for the purpose of obtaining benefits and advantages for oneself or other persons or organizations, or causing harm to other persons or organizations, the actions of the guilty person are qualified under paragraph 3) of part 4 of Article 362 as exceeding authority or official powers committed under particularly aggravating circumstances.

The acts provided for in parts 1 and 3 of Article 362 of the Criminal Code are classified as crimes of medium gravity.

The act provided for in part 4 of Article 362 of the Criminal Code is classified as a serious crime.

Commentary of 2021 to the Criminal Code of the Republic of Kazakhstan by Isidor Shamilovich Borchashvili, Honored 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, Honored Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.

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