Commentary on Article 363. Misappropriation of the Powers of an Official under the Criminal Code of the Republic of Kazakhstan
1. The misappropriation by a civil servant who is not an official of the powers of an official and the commission by such person, in connection therewith, of actions that have resulted in causing substantial harm to the rights and legitimate interests of citizens or organizations, or to the interests of society or the state protected by law, —
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 engagement in community service for a period of up to one hundred and sixty hours, or arrest for a period of up to forty days.
The public danger of this criminal offence lies in its encroachment upon the interests of public service, as regulated by legislation on public service and the fight against corruption.
The object of the criminal offence is the interests of public service. The constitutional rights and freedoms of individuals and citizens, as well as the interests of citizens or organizations, should be recognized as an additional object.
The objective aspect of the criminal offence consists of the misappropriation by a civil servant who is not an official of the powers of an official and the commission by such person, in connection therewith, of actions that have resulted in causing substantial harm to the rights and legitimate interests of citizens or organizations, or to the interests of society or the state protected by law.
In this regard, the consequences that have occurred must be causally related to the act committed by the civil servant.
The misappropriation of the powers of an official may be expressed in declaring oneself to be an official, using forged documents in connection therewith (official identification cards, inspection orders, etc.), uniforms, and the powers of the relevant official. For example, such actions may include stopping motor vehicles under the pretext of conducting an inspection by a person falsely claiming to be a road patrol police inspector, or conducting inspections of small or medium-sized business entities by a person falsely claiming to be an official of the State Fire Service or a tax authority, etc.
For an act to be recognized as a criminal offence, the mere fact that the perpetrator has misappropriated the powers of an official is insufficient. It is necessary that the person perform certain actions in connection therewith, that is, exercise the powers of the relevant official. Therefore, merely declaring oneself to be an official does not constitute the elements of the criminal offence under consideration. If the misappropriation of the powers of an official is accompanied by official forgery or is committed through the use of knowingly forged documents, the acts in such cases should be classified cumulatively as criminal offences under Articles 363 and 369 or 385 of the Criminal Code.
The elements of the criminal offence under analysis are present only in cases where the perpetrator performs an action falling within the competence of an official. If a civil servant impersonates an official solely for the purpose of obtaining a bribe in exchange for actions that he or she allegedly has the authority to perform, that person shall be held liable for fraud (Article 190 of the Criminal Code) and incitement to bribery (Part 4 of Article 28 and Article 367 of the Criminal Code).
The criminal offence is deemed completed from the moment substantial harm is caused to the rights and legitimate interests of citizens or organizations, or to the interests of society or the state protected by law.
For the purposes of this criminal offence, substantial harm may be expressed in the violation of the constitutional rights and freedoms of individuals and citizens, the rights and legitimate interests of organizations, the interests of society and the state protected by law, the infliction of significant damage, the occurrence of a difficult life situation for the victim, disruption of the normal functioning of organizations or state bodies, and other consequences indicating the substantial nature of the harm caused.
From the subjective perspective, the crime is committed only intentionally. The person is aware that he or she is unlawfully misappropriating the powers of an official and performing certain actions in connection therewith, foresees that such actions may result in substantial harm to the rights and legitimate interests of citizens or organizations, or to the interests of society or the state protected by law, and desires the occurrence of such harm.
The subject of the crime can only be civil servants who are not officials.
According to subparagraph 12) of Article 1 of the Law of the Republic of Kazakhstan “On Public Service of the Republic of Kazakhstan,” a civil servant is a citizen of the Republic of Kazakhstan who, in accordance with the procedure established by the legislation of the Republic of Kazakhstan, holds a public position in a state body remunerated from the republican or local budgets or from the funds of the National Bank of the Republic of Kazakhstan and exercises official powers for the purpose of implementing the tasks and functions of the state.
If an official misappropriates the powers of another official, such person shall be subject to criminal liability, but not under Article 363 of the Criminal Code; rather, under Article 362 of the Criminal Code for abuse of power or official authority.
The commission of such actions by other persons who are not civil servants entails criminal liability under other articles of the Criminal Code (for example, under Article 149 of the Criminal Code — for violation of the inviolability of the home).
The act provided for in Article 363 of the Criminal Code is classified as a criminal misdemeanour.
Commentary to the Criminal Code of the Republic of Kazakhstan, 2021, 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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