Commentary on Article 374. Violation of the Guarantees of Immunity of the First President of the Republic of Kazakhstan – Elbasy of the Criminal Code of the Republic of Kazakhstan
1. Violation, in any form whatsoever, of the guarantees of immunity of the First President of the Republic of Kazakhstan – Elbasy and the members of his family residing with him, including the guarantees of immunity of property, residential and official premises, personal and official vehicles, correspondence, means of communication used by them, guarantees of banking secrecy and inviolability of bank accounts, as well as the inviolability of documents belonging to them, –
shall be punishable by a fine in an amount of up to five thousand monthly calculation indices, or corrective labor in the same amount, or restriction of liberty for a term of up to five years, or imprisonment for the same term.
The public danger of the crime under consideration is expressed in the violation of the political and legal status, prerogatives and guarantees of the First President of the Republic of Kazakhstan – Elbasy, established by the Constitution of the Republic of Kazakhstan and the Constitutional Law of the Republic of Kazakhstan “On the First President of the Republic of Kazakhstan – Elbasy”, associated with the violation of the inviolability of the First President and the members of his family residing with him, including the guarantees of inviolability of property, residential and official premises, personal and official vehicles, correspondence, means of communication used by them, guarantees of banking secrecy and inviolability of bank accounts, as well as the inviolability of documents belonging to them.
The object of the crime under consideration is the public relations ensuring the inviolability of the First President of the Republic of Kazakhstan – Elbasy and the members of his family residing with him.
The subject matter of the crime may include property, residential premises and official vehicles, correspondence, means of communication used by the First President of the Republic of Kazakhstan – Elbasy and the members of his family residing with him, banking secrecy and bank accounts, as well as documents belonging to them.
The objective element of the crime provided for in Article 374 of the Criminal Code consists in violating, in any form whatsoever, the guarantees of immunity of the First President of the Republic of Kazakhstan – Elbasy and the members of his family residing with him, including the guarantees of inviolability of property, residential and official premises, personal and official vehicles, correspondence, means of communication used by them, guarantees of banking secrecy and inviolability of bank accounts, as well as the inviolability of documents belonging to them.
Pursuant to Article 3 of the Constitutional Law of the Republic of Kazakhstan “On the First President of the Republic of Kazakhstan – Elbasy”, the First President of the Republic of Kazakhstan – Elbasy enjoys immunity. He may not be held liable for actions committed during the period in which he exercised the powers of the President of the Republic of Kazakhstan and, after the termination of those powers, for actions related to the exercise of his status as the First President of the Republic of Kazakhstan – Elbasy. He may not be subjected to detention, arrest or custody, search, interrogation or personal examination.
Immunity extends to all property privately owned by the First President of the Republic of Kazakhstan – Elbasy and the members of his family residing with him, as well as to the residential and official premises, official vehicles, means of communication, correspondence and documents belonging to them. Immunity also extends to property belonging to the Foundation of the First President of the Republic of Kazakhstan – Elbasy and other legal entities established by him.
No restrictions of any kind whatsoever may be imposed on property privately owned by the First President of the Republic of Kazakhstan – Elbasy and the members of his family residing with him, or on the property of legal entities established by him.
Banking secrecy and the inviolability of bank accounts of the First President of the Republic of Kazakhstan – Elbasy and the members of his family residing with him are guaranteed.
Violation of the guarantees of immunity of the First President of the Republic of Kazakhstan – Elbasy and the members of his family residing with him shall be understood as any encroachment upon the personal liberty (unlawful arrest, detention, conducting an unlawful search, etc.), physical integrity (beating, torture, conducting experiments, etc.) and psychological inviolability (blackmail, intimidation, threats) of the above-mentioned persons.
Official premises are rooms and sections intended for the accommodation and rest of personnel. In addition, this category includes offices and departments in which equipment, tools and personal belongings of the First President of the Republic of Kazakhstan – Elbasy and/or members of his family are located. Official premises also include premises intended for the residence of Elbasy and/or members of his family in connection with the appointment of the above-mentioned persons to a public office or their election to elective positions in public authorities or local self-government bodies.
Personal transport shall be understood as a vehicle (railway, automobile, sea, inland waterway, air or urban rail transport) intended for personal use, registered in the name of the First President of the Republic of Kazakhstan – Elbasy or a member of his family, or used by the above-mentioned persons on a legal basis provided for by the legislation of the Republic of Kazakhstan (power of attorney, gratuitous use, lease, etc.).
Official transport is a vehicle owned by the state or a company and placed at the temporary or permanent disposal of the First President of the Republic of Kazakhstan – Elbasy or a member of his family.
Violation of the guarantees of inviolability of property, residential and official premises, personal and official vehicles shall be understood as unlawful entry into them, conducting searches and seizures.
Correspondence is communication through letters. Correspondence may be conducted using messengers – programs (applications) for instant exchange of messages via the Internet, electronic correspondence (email), as well as postal letters.
Means of communication are a set of technical and software tools used for the generation, reception, processing, storage and delivery of telecommunications messages or postal items.
Violation of the guarantees of inviolability of correspondence and the means of communication used shall be understood as the unlawful seizure of postal correspondence, interception of telephone conversations, viewing of messages in messengers, etc.
Banking secrecy is a legal principle under which banks and other credit institutions protect information about their clients' and correspondents' deposits and accounts, banking transactions on accounts and transactions conducted in the interests of the client, as well as client information, the disclosure of which may violate the latter's right to privacy.
Information concerning loans issued by a bank undergoing liquidation shall not constitute banking secrecy.
A bank account is an account opened by a bank for legal entities or individuals for their participation in non-cash monetary circulation and for the accumulation of non-cash funds in the account for their intended use.
Violation of the guarantees of banking secrecy and inviolability of bank accounts shall be understood as the unlawful seizure of bank accounts.
A document is information recorded on a tangible medium and containing details that make it possible to identify it. There are also other definitions of this concept. Thus, a document may be defined as information retained by individuals and organizations as confirmation of their activities or obligations.
A document may contain written, textual, handwritten, typewritten, electronic or pictorial information. It may be a video document, audio document, photographic document, as well as a final or draft document.
Violation of the inviolability of documents belonging to the First President of the Republic of Kazakhstan – Elbasy and the members of his family residing with him shall be understood as their unlawful seizure.
By its legal structure, the corpus delicti is formal. The crime shall be considered completed from the moment the inviolability of the First President of the Republic of Kazakhstan – Elbasy and the members of his family residing with him is violated.
The subjective element of the crime provided for in Article 374 of the Criminal Code is characterized by an intentional form of guilt, meaning that the perpetrator is aware that he or she is violating the guarantees of immunity of the First President of the Republic of Kazakhstan – Elbasy and the members of his family residing with him, as established by law, and desires to do so.
The motive and purpose do not affect the legal classification of the crime. Motives may vary and must be taken into account when imposing punishment.
The subject of the crime under consideration is a sane natural person who has attained the age of 16.
The act provided for in Article 374 of the Criminal Code belongs to the category of medium-gravity crimes.
**Commentary (2021) on 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 the 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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