Commentary on Article 377. Obstruction of the Activities of the Constitutional Council of the Republic of Kazakhstan of the Criminal Code of the Republic of Kazakhstan
1. Interference in any form in the activities of the Constitutional Council of the Republic of Kazakhstan for the purpose of obstructing the exercise of its powers —
shall be punishable by a fine in an amount of up to two thousand monthly calculation indices, or corrective labor in the same amount, or restriction of liberty for a term of up to two years, or imprisonment for the same term.
2. The same act committed by a person through the use of their official position —
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 restriction of liberty for a term of up to three years, or imprisonment for the same term, with deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years, or without such deprivation.
In matters concerning the strengthening of legality and law and order in the country, an important role is assigned to the legal protection of the Constitution of the Republic of Kazakhstan. Legal protection of the Constitution means a set of legal instruments through which the implementation of all constitutional provisions and strict observance of the regime of constitutional legality are ensured. The body ensuring the supremacy of the Constitution throughout the territory of the Republic is the Constitutional Council of the Republic of Kazakhstan.
In accordance with Article 71 of the Constitution, the Constitutional Council of the Republic of Kazakhstan consists of seven members whose terms of office last six years. Former Presidents of the Republic are lifetime members of the Constitutional Council by virtue of their office.
The Chairperson of the Constitutional Council is appointed by the President of the Republic, and in the event of an equal division of votes, the Chairperson's vote shall be decisive. Two members of the Constitutional Council are appointed by the President of the Republic, while two members each are appointed by the Senate and the Mazhilis, respectively. Half of the members of the Constitutional Council are renewed every three years. During their terms of office, the Chairperson and members of the Constitutional Council may not be arrested, subjected to compulsory appearance, subjected to administrative penalties imposed through judicial proceedings, or held criminally liable without the consent of Parliament, except in cases of detention at the scene of a crime or the commission of serious crimes.
The organization and activities of the Constitutional Council are regulated by a constitutional law.
The public danger of the crime under consideration lies in the fact that it infringes upon the activities of the Constitutional Council of the Republic of Kazakhstan, which ensures the supremacy of the Constitution throughout the territory of the Republic and guarantees the protection of citizens' rights and freedoms. At the same time, the authority of the members of the Constitutional Council, as well as their independence and autonomy, are undermined.
The object of the crime commented upon is the public relations ensuring the activities of the Constitutional Council of the Republic of Kazakhstan.
The objective aspect of the crime provided for in Article 377 of the Criminal Code consists in interference in any form in the activities of the Constitutional Council of the Republic of Kazakhstan for the purpose of obstructing the exercise of its powers.
The status of the Constitutional Council of Kazakhstan is defined in Article 1 of the Constitutional Law of the Republic of Kazakhstan dated December 29, 1995, “On the Constitutional Council of the Republic of Kazakhstan”: “The Constitutional Council, as a state body ensuring the supremacy of the Constitution of the Republic of Kazakhstan throughout the territory of the Republic: 1) is independent and autonomous in the exercise of its powers from state bodies, organizations, officials and citizens, is subject only to the Constitution of the Republic and may not be guided by political or other motives; 2) exercises its powers in accordance with the Constitution of the Republic and this Constitutional Law, refraining from establishing and examining other matters in all cases where such matters fall within the competence of courts or other state bodies.”
Interference in the activities of the Constitutional Council means participation in the activities of the Constitutional Council with the purpose of changing the course of its work, that is, hindering its normal functioning or disrupting its work.
Interference in the activities of the Constitutional Council of the Republic of Kazakhstan may take various forms. For example, issuing instructions regarding the consideration of matters that do not fall within the competence of this body; unlawfully demanding reports on matters relating to the exercise of their powers by the Chairperson and members of the Constitutional Council; exerting pressure or otherwise influencing members of the Council; attempting to influence the final decision of the Constitutional Council concerning the repeal and non-application of a law or other regulatory legal act that infringes upon the human and civil rights and freedoms enshrined in the Constitution.
Thus, in accordance with Article 72 of the Constitution, the Constitutional Council of the Republic of Kazakhstan, upon applications submitted by the President of the Republic of Kazakhstan, the Chairperson of the Senate, the Chairperson of the Mazhilis, at least one-fifth of the total number of members of Parliament, or the Prime Minister: “... 1) resolves, in the event of a dispute, the issue of the correctness of the conduct of elections of the President of the Republic, members of Parliament, and the holding of a republican referendum; 2) reviews laws adopted by Parliament before they are signed by the President for their compliance with the Constitution of the Republic; 2-1) reviews resolutions adopted by Parliament and its Chambers for their compliance with the Constitution of the Republic; 3) reviews international treaties of the Republic for their compliance with the Constitution prior to ratification; 4) provides official interpretation of the norms of the Constitution; 5) issues opinions in the cases provided for in paragraphs 1 and 2 of Article 47 of the Constitution,” and, in accordance with subparagraph 2) of paragraph 3 of Article 17 of the Constitutional Law of the Republic of Kazakhstan “On the Constitutional Council of the Republic of Kazakhstan,” before Parliament adopts a decision on the early release of the President of the Republic from office or a final decision on the removal of the President of the Republic from office, issues an opinion on compliance with the established constitutional procedures.
The Constitutional Council considers applications submitted by the President of the Republic concerning the compliance of a law or other legal act that has entered into force with the Constitution of the Republic of Kazakhstan, as well as applications submitted by courts in cases where a court determines that a law or other regulatory legal act subject to application infringes upon the human and civil rights and freedoms enshrined in the Constitution, requesting that such act be declared unconstitutional (subparagraph 10-1) of Article 44 and Article 78 of the Constitution).
Based on the results of summarizing the practice of constitutional proceedings, the Constitutional Council annually submits a message to Parliament on the state of constitutional legality in the Republic.
The Constitutional Council is also entitled, within the limits of its competence, to request and receive documents, materials and other information from all state bodies and organizations, as well as to engage specialists, in accordance with the established procedure, in expert and scientific-consultative work; it submits motions for the suspension of the powers of the Chairperson and members of the Constitutional Council.
The corpus delicti provided for in Article 377 of the Criminal Code is formal in its construction; therefore, bringing a person to criminal liability does not require the occurrence of any negative consequences. The very fact of interference in any form in the activities of the Constitutional Council of the Republic of Kazakhstan is sufficient.
The subjective aspect of the crime commented upon is characterized by direct intent. The perpetrator is aware that, through their unlawful actions, they are illegally interfering in the activities of the Constitutional Council of the Republic of Kazakhstan and desires to do so.
The act under consideration has a mandatory subjective element (special purpose): obstructing the exercise of the powers of the Constitutional Council of the Republic of Kazakhstan.
Obstruction consists in the deliberate creation of unlawful actions or omissions as a result of which the Constitutional Council is unable to carry out its activities, either fully or partially, in the manner and within the limits established by the Constitution and the Constitutional Law of the Republic of Kazakhstan “On the Constitutional Council of the Republic of Kazakhstan,” that is, depriving it of the opportunities (powers) granted to it by the Constitution and the aforementioned Constitutional Law.
Motives may vary and must be taken into account when imposing punishment.
The subject of the crime is a sane natural person who has attained the age of 16.
Part 2 of Article 377 of the Criminal Code establishes criminal liability for interference in any form in the activities of the Constitutional Council of the Republic of Kazakhstan for the purpose of obstructing the exercise of its powers, committed through the use of one's official position.
In order to establish the fact that a person has used their official position, it is necessary to determine which regulatory document establishes the status and powers of that person and how those powers were unlawfully used.
In the context of the corpus delicti under analysis, the use of official position should be understood as such interference in the activities of the Constitutional Council of the Republic of Kazakhstan whereby the perpetrator interferes in the activities of the said body by using their official position. For example, an official, taking advantage of their connections, contacts a member of the Constitutional Council in order to influence the final decision of the Constitutional Council in constitutional proceedings in the interests of that official or other persons whom they represent.
The act provided for in Part 1 of Article 377 of the Criminal Code belongs to the category of minor offences.
The act provided for in Part 2 of Article 377 of the Criminal Code belongs to the category of offences of medium gravity.
Spelling errors and obvious typographical mistakes have been corrected; the content and volume of the text have been preserved.
Commentary on the Criminal Code of the Republic of Kazakhstan, 2021, 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 reforming 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.
Constitution Law Code Regulatory Act Decree Order Resolution Decision Advocate Almaty Lawyer Legal service Legal Consultation Civil Criminal Administrative cases disputes Defense Arbitration Legal Company of Kazakhstan Law Office Court Cases Declaration Decree Order Resolution Decision Report Opinion Application Opinion Convention Contract Memorandum Methodology Norms Note Rules Program Charter Charter Article Commentary Resolution Regulations Protocol Draft Program Rules Messages
