Commentary on Article 376. Encroachment on the Honour and Dignity of a Deputy of the Parliament of the Republic of Kazakhstan and Obstruction of His or Her Activities under the Criminal Code of the Republic of Kazakhstan

1. Public insult of a Deputy of the Parliament of the Republic of Kazakhstan while performing his or her parliamentary duties or in connection with the performance thereof —

shall be punishable by a fine of up to two hundred monthly calculation indices, or corrective labour in the same amount, or community service for a period of up to two hundred hours, or arrest for a period of up to fifty days.

2. The same act committed through the use of mass media or telecommunications networks —

shall be punishable by a fine of up to two thousand monthly calculation indices, or corrective labour in the same amount, or restriction of liberty for a period of up to two years, or imprisonment for the same period.

3. Exercising influence, in any form whatsoever, on a Deputy of the Parliament of the Republic of Kazakhstan or his or her close relatives for the purpose of obstructing the performance of the Deputy's duties —

shall be punishable by a fine 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 imprisonment for the same period.

Note. Public speeches containing critical statements concerning the parliamentary activities of a Deputy of the Parliament of the Republic of Kazakhstan shall not entail criminal liability under this Article.

In accordance with paragraph 1 of Article 49 of the Constitution of the Republic of Kazakhstan, the Parliament of the Republic of Kazakhstan is the highest representative body of the Republic exercising legislative power. The powers of the Parliament commence from the moment the first session of the Parliament is opened and terminate upon the commencement of the first session of the Parliament of the new convocation (paragraph 2 of Article 49 of the Constitution).

The Parliament consists of two Chambers: the Senate and the Mazhilis, which operate on a permanent basis (paragraph 1 of Article 50 of the Constitution).

According to paragraph 4 of Article 51 of the Constitution, a person who is a citizen of the Republic of Kazakhstan and has permanently resided within its territory for the last ten years may be elected as a Deputy of the Parliament.

A person who has attained the age of thirty, has a higher education and at least five years of work experience, and has permanently resided within the territory of the relevant region, city of republican significance or the capital of the Republic for at least three years may be elected as a Senator.

A person who has attained the age of twenty-five may be elected as a Deputy of the Mazhilis.

According to Article 25 of the Constitutional Law of the Republic of Kazakhstan dated 16 October 1995, “On the Parliament of the Republic of Kazakhstan and the Status of Its Deputies”, a Deputy shall have the right to a decisive vote on all matters considered at sessions of the Parliament and at meetings of its bodies of which the Deputy is a member.

Exercising influence, in any form whatsoever, on a Deputy or his or her close relatives for the purpose of obstructing the performance of parliamentary duties shall entail liability in accordance with the laws of the Republic of Kazakhstan. Officials of state bodies, public associations, local self-government bodies and organisations who fail to fulfil their obligations towards a Deputy, provide him or her with knowingly false information, or violate the guarantees of parliamentary activities shall be held liable in accordance with the laws of the Republic of Kazakhstan.

The public danger of the criminal offence under consideration (Part 1 constitutes a criminal misdemeanour, while Parts 2 and 3 constitute crimes) lies in the fact that it infringes upon the honour and dignity of a Deputy of the Parliament of the Republic of Kazakhstan, who is a representative of the people and carries out activities in the interests of the people, society and the State. At the same time, as a result of the commission of the act in question, the authority of representative bodies of government exercising legislative power is undermined as a whole, a tense atmosphere is created in the activities of Deputies, thereby disrupting the functioning of the Parliament.

The object of the criminal offence under consideration is the social relations ensuring the activities of a Deputy of the Parliament of the Republic of Kazakhstan. The additional object is the social relations guaranteeing the protection of the honour and dignity of a Deputy of the Parliament of the Republic of Kazakhstan.

Under Parts 1 and 2 of Article 376 of the Criminal Code, only a Deputy of the Parliament of the Republic of Kazakhstan may be the victim, whereas under Part 3, in addition to the Deputy of the Parliament, his or her close relatives may also be victims.

The objective element of the criminal offence provided for in Article 376 of the Criminal Code consists in publicly insulting a Deputy of the Parliament of the Republic of Kazakhstan while performing his or her parliamentary duties or in connection with the performance thereof.

For the purposes of the Article under consideration, insult means the actions of the perpetrator expressed in the degradation of not only the personal, human, professional, occupational and official dignity of the Deputy as a representative of authority, but also his or her dignity as a Deputy of the Parliament.

Insult may also be expressed through physical actions (for example, tearing off a button, spitting in the face, slapping, making indecent gestures, etc.) that humiliate the dignity of a Deputy of the Parliament of the Republic of Kazakhstan.

In cases of insult, the circumstances constitute an essential element: the specified actions must be committed in a public setting, that is, in the presence of a certain number of third parties.

“Public” means open or carried out in the presence of an audience. Accordingly, an insult delivered in the presence of at least one person who is not the perpetrator or the victim shall be recognised as public.

The criminal offence under consideration may be committed by any means: verbally, in writing, through the use of mass media, or by conduct.

Publicity also includes the use of mass media and information and communication networks, for example, computer technology and other means.

If the perpetrator publicly insults a Deputy of the Parliament for personal reasons at a time when the Deputy is not performing his or her parliamentary duties, or if the insult is in no way connected with the performance of such duties, the perpetrator's actions must be classified under the relevant Article of the Criminal Code provided for in Chapter 1, “Criminal Offences Against the Individual”.

A duty is a set of actions assigned to a person and mandatory for that person to perform.

The duties of a Deputy of the Parliament of the Republic of Kazakhstan arise from his or her legal status and are clearly regulated by the Constitution and the Constitutional Law of the Republic of Kazakhstan “On the Parliament of the Republic of Kazakhstan and the Status of Its Deputies”.

When explaining what should be understood by the performance of parliamentary duties by a Deputy of the Parliament, it is necessary to take into account that the powers of a Deputy of the Parliament commence from the moment the Central Election Commission of the Republic of Kazakhstan registers the person as a Deputy of the Parliament.

At meetings of the respective Chambers of the Parliament of the Republic of Kazakhstan, Deputies of the Senate and the Mazhilis take the following oath to the people of Kazakhstan:

“I swear to faithfully serve the people of Kazakhstan, to strengthen the integrity and independence of the Republic of Kazakhstan, to strictly comply with its Constitution and laws, and to conscientiously fulfil the high duties of a Deputy entrusted to me.”

At the discretion of the President of the Republic of Kazakhstan, Deputies of the Parliament may take the oath directly before the President of the Republic of Kazakhstan in accordance with the procedure determined by the President.

A Deputy of the Parliament shall not have the right to be a Deputy of another representative body, hold other paid positions, except for teaching, scientific or other creative activities, engage in entrepreneurial activities, or be a member of the governing body or supervisory board of a commercial organisation.

A Deputy is obliged to participate in the work of the Parliament and its bodies to which he or she has been elected. Voting in the Parliament shall be carried out by a Deputy personally and only by that Deputy.

The criminal offence provided for in Parts 1 and 2 of Article 376 of the Criminal Code may also be committed when a Deputy of the Parliament of the Republic of Kazakhstan is not directly performing his or her parliamentary duties, but the public insult is directed at the Deputy in connection with the performance of those duties. In such cases, at the time of the public insult, the Deputy may not be performing parliamentary duties and may be outside the scope of parliamentary activities.

The concept of “in connection with the performance of duties” means that the motive for publicly insulting a Deputy of the Parliament is connected with the Deputy's previous activities or future activities, or with hostility towards Deputies of the Parliament in general.

The elements of the criminal misdemeanour provided for in Part 1 of Article 376 of the Criminal Code are formal in structure. Therefore, the occurrence of any negative consequences is not required for a person to be held criminally liable; the mere fact of publicly insulting a Deputy of the Parliament of the Republic of Kazakhstan while performing his or her parliamentary duties or in connection with the performance thereof is sufficient.

In cases where the insult is committed in the absence of the victim, the criminal offence under analysis shall be considered completed from the moment other persons inform the victim of the insults made against him or her.

The subjective element of the act under consideration is characterised by direct intent. The perpetrator is aware that he or she is publicly insulting a Deputy of the Parliament of the Republic of Kazakhstan while the Deputy is performing parliamentary duties or in connection with the performance thereof, and desires to do so.

The motives may vary (political, hooligan motives, etc.) and must be taken into account when imposing punishment. The purpose is to obstruct the activities of the Deputy.

The subject of the criminal offence under analysis may be any sane person who has attained the age of sixteen.

Part 2 of Article 376 of the Criminal Code establishes criminal liability for publicly insulting a Deputy of the Parliament of the Republic of Kazakhstan while performing parliamentary duties or in connection with the performance thereof, where such insult is committed through the use of mass media or telecommunications networks.

Public insult of a Deputy of the Parliament of the Republic of Kazakhstan while performing parliamentary duties or in connection with the performance thereof, committed through the use of mass media or telecommunications networks, constitutes public humiliation of the Deputy's honour and dignity expressed in an indecent form, or the dissemination of knowingly false information that discredits his or her honour and dignity or undermines his or her reputation through the use of printed publications, television and radio channels, Internet websites, messaging applications, etc.

A more detailed description of the qualifying elements of the crime under consideration is provided in the commentary to Article 373 of the Criminal Code.

In Part 3 of Article 376 of the Criminal Code, the legislator has established an independent corpus delicti providing for criminal liability for exercising influence, in any form whatsoever, on a Deputy of the Parliament of the Republic of Kazakhstan or his or her close relatives for the purpose of obstructing the performance of the Deputy's duties.

Exercising influence on a Deputy of the Parliament of the Republic of Kazakhstan or his or her close relatives means actions directed at the above-mentioned persons for the purpose of obstructing the performance of the Deputy's parliamentary duties.

Influence should be understood as actions expressed in any form whatsoever: for example, displaying posters depicting caricatures of a Deputy of the Parliament or making threats over the telephone, and similar actions. Such actions may be expressed both verbally and in writing.

Obstruction may take the form of an attempt to prevent, terminate or alter the activities of a Deputy of the Parliament in the present, or to prevent or preclude the performance of his or her duties in the future. At the same time, obstruction covers not only the period during which parliamentary duties are performed but also any other time.

The elements of the crime provided for in Part 3 of Article 376 of the Criminal Code are formal in structure. The crime shall be considered completed from the moment influence, in any form whatsoever, is exercised on a Deputy of the Parliament of the Republic of Kazakhstan or his or her close relatives for the purpose of obstructing the performance of the Deputy's duties.

The subjective element of the crime provided for in Part 3 of Article 376 of the Criminal Code is characterised by direct intent. The perpetrator is aware that he or she is exercising influence on a Deputy of the Parliament of the Republic of Kazakhstan or his or her close relatives and desires to do so.

The act under consideration has a mandatory subjective element (a special purpose), namely, obstructing the performance of the duties of a Deputy of the Parliament of the Republic of Kazakhstan.

In accordance with the Note to Article 376 of the Criminal Code, public speeches containing critical statements concerning the activities of a Deputy of the Parliament shall not entail criminal liability under the Article being commented on.

The act provided for in Part 1 of Article 376 of the Criminal Code is classified as a criminal misdemeanour.

The act provided for in Part 2 of Article 376 of the Criminal Code is classified as a crime of minor gravity.

The act provided for in Part 3 of Article 376 of the Criminal Code is classified as a crime of medium gravity.

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 National Academy of Natural Sciences of Kazakhstan, 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 Worker of the Ministry of Internal Affairs of the Republic of Kazakhstan.

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