Commentary on Article 379. Disobedience to a Representative of Authority of the Criminal Code of the Republic of Kazakhstan

1. Disobedience to a lawful demand or order of a representative of authority, committed in an area where a state of emergency has been declared or in a zone where an anti-terrorist operation is being conducted, —

shall be punishable by a fine in an amount of up to two thousand monthly calculation indices, or correctional labour in the same amount, or community service for a period of up to six hundred hours, or restriction of liberty for a period of up to two years, or deprivation of liberty for the same period.

Disobedience to a representative of authority, in comparison with insulting a representative of authority, constitutes a more dangerous criminal offence, since the guilty person openly and demonstratively sets their own will against the lawful demands of the representative of authority.

The public danger of the crime provided for in Article 379 of the Criminal Code lies in the fact that this act undermines the authority of state bodies through the person of the representative of authority and significantly obstructs the normal performance of their activities.

The object of the crime under consideration is public relations ensuring the activities of administrative bodies and representatives of authority.

The objective element of the crime provided for in Article 379 of the Criminal Code consists in disobedience to a lawful demand or order of a representative of authority, committed in an area where a state of emergency has been declared or in a zone where an anti-terrorist operation is being conducted.

Within the meaning of the article under consideration, disobedience should be understood as the open opposition by the guilty person of their own will to the lawful demands of a representative of authority. In response to a lawful demand or order of a representative of authority, the guilty person categorically declares or otherwise demonstrates that they will not comply with these demands. Disobedience may be public or expressed to the representative of authority in private.

Disobedience to a lawful demand or order of a representative of authority issued in accordance with the established procedure, i.e. one that does not contradict the law, is recognised as a crime. Disobedience to a demand or order that contradicts the law or has not been issued in accordance with the established procedure does not constitute the elements of this act.

A demand is a request or order expressed in a resolute and categorical form.

An order is an action expressed in the form of an oral or written request made by someone for another person to perform something.

Thus, a lawful demand or order is an oral or written request expressed in a resolute and categorical form, which does not contradict the law and does not violate existing laws.

Disobedience to a lawful demand or order of a representative of authority constitutes a criminally punishable act provided that it is committed in an area where a state of emergency has been declared or in a zone where an anti-terrorist operation is being conducted.

In accordance with subparagraph 5) of Article 1 of the Law of the Republic of Kazakhstan dated 8 February 2003, “On the State of Emergency”, a state of emergency is a temporary measure applied exclusively in the interests of ensuring the safety of citizens and protecting the constitutional order of the Republic of Kazakhstan, and representing a special legal regime for the activities of state bodies and organisations, which permits the imposition of certain restrictions on the rights and freedoms of citizens, foreigners and stateless persons, as well as on the rights of legal entities, and imposes additional obligations on them.

According to subparagraph 6) of Article 1 of the above-mentioned Law, the boundaries of the area in which a state of emergency is introduced are the territory of one or several administrative-territorial units of the Republic of Kazakhstan.

In accordance with the Law of the Republic of Kazakhstan dated 8 December 1993, “On the Administrative-Territorial Structure of the Republic of Kazakhstan”, the administrative-territorial units of the Republic of Kazakhstan include a village, settlement, rural district, district within a city, city, district and region.

A state of emergency throughout the entire territory of the Republic of Kazakhstan or in certain parts thereof is introduced by the President of the Republic of Kazakhstan through an appropriate decree following official consultations with the Prime Minister and the Speakers of the Chambers of the Parliament of the Republic of Kazakhstan, with immediate notification of the Parliament of the Republic of Kazakhstan.

The Decree of the President of the Republic of Kazakhstan introducing a state of emergency is subject to immediate publication in official printed publications in accordance with the legislation of the Republic of Kazakhstan and must be brought to the attention of the population through all mass media.

According to subparagraph 7) of Article 1 of the Law of the Republic of Kazakhstan dated 13 July 1999, “On Counteracting Terrorism”, an anti-terrorist operation is a set of special measures involving the use of physical force, service dogs, combat and other equipment, weapons and special means, aimed at preventing and suppressing an act of terrorism, neutralising terrorists and explosive devices, ensuring the safety of individuals and organisations, as well as minimising and (or) eliminating the consequences of an act of terrorism.

The zone of an anti-terrorist operation is certain sections of terrain or water areas, airspace, a vehicle, a building, a structure, a facility, a premises and the territories adjacent thereto, within the boundaries of which the specified operation is conducted, as determined by the head of the anti-terrorist operation.

Terrain is a particular place, space or section of the Earth's surface.

A water area is the water surface of something, a section of a water surface within certain boundaries.

Airspace is the part of the Earth's atmosphere suitable for aircraft flights, as distinct from airless (outer space). International agreements recognise state sovereignty over airspace but do not extend it to outer space. Sovereign airspace is generally located above the land areas belonging to a state, as well as its territorial, internal and border waters.

Vehicles are devices designed to transport people, various types of cargo and various equipment installed on the vehicle from one place to another. Types of transport are classified depending on the environment in which the vehicle operates and transportation is carried out. Water, land, air, underground and space vehicles are distinguished. There are also combined vehicles capable of moving through several environments — amphibious vehicles, aeroplanes and certain types of air-cushion vehicles.

A building is a ground-based construction structure containing premises for residence (a dwelling) and (or) human activities, the accommodation of production facilities, the storage of products or the keeping of animals. A building may have operational premises in its underground section. A structure that has no above-ground section is not considered a building.

A construction is an architectural object intended for residential purposes, production activities and other purposes. Buildings and structures are classified as constructions.

A structure is a three-dimensional, flat or linear construction system having ground-level, above-ground and (or) underground sections, consisting of load-bearing and, in certain cases, enclosing building structures, and intended for carrying out various types of production processes, storing products, temporarily accommodating people, and transporting people and cargo.

A premises is a space inside a building that has a specific functional purpose and is bounded by construction structures.

An anti-terrorist operation is conducted for the purpose of suppressing an act of terrorism, neutralising terrorists and explosive devices, ensuring the safety of individuals and organisations, as well as minimising and (or) eliminating its consequences.

The boundaries of the anti-terrorist operation zone, the time of its commencement and completion are determined by the head of the operational headquarters, who also makes decisions regarding the directions and limits of the use of the forces and resources assigned to the operation.

Depending on the scale and degree of public danger and the expected negative consequences of an act of terrorism, leadership of the anti-terrorist operation is exercised by the head of the republican or regional operational headquarters, the operational headquarters of a city of republican significance, the capital, a district (a city of regional significance), or the maritime operational headquarters.

The elements of the crime provided for in Article 379 of the Criminal Code are formal in nature; accordingly, the occurrence of any negative consequences is not required in order to bring a person to criminal liability. The mere fact of disobedience to a lawful demand or order of a representative of authority in an area where a state of emergency has been declared or in a zone where an anti-terrorist operation is being conducted is sufficient.

The subjective element of the crime under consideration is characterised by direct intent. The guilty person is aware that they are disobeying a lawful demand or order of a representative of authority in an area where a state of emergency has been declared or in a zone where an anti-terrorist operation is being conducted, and desires to do so.

The motive does not affect the legal classification of the offence but is taken into account by the court when imposing punishment.

The subject of the crime provided for in Article 379 of the Criminal Code may be any sane person who has reached the age of 16.

As a rule, disobedience to a lawful demand or order of a representative of authority, committed in an area where a state of emergency has been declared or in a zone where an anti-terrorist operation is being conducted, is often accompanied by the use of violence against a representative of authority.

Thus, due to the widespread outbreak of the COVID-19 infection (coronavirus), a state of emergency was declared in Kazakhstan in March 2020. A quarantine regime was introduced in Almaty, Nur-Sultan and a number of other regions. One of the restrictive measures was a ban on going outside without an urgent necessity.

Despite this, a foot patrol in the city of Almaty noticed a man with a baby stroller in a recreational alley. In response to the verbal warning by a police officer and military personnel that during the period of the imposed quarantine it was prohibited to leave one's home without an urgent necessity, the young man reacted aggressively. He disobeyed the district police inspector and used physical force against him, tearing the police officer's uniform. The actions of the man were correctly classified by the City Court of Almaty under the cumulative application of Article 379 of the Criminal Code, “Disobedience to a Representative of Authority”, and Article 380 of the Criminal Code, “Use of Violence against a Representative of Authority”.

The act provided for in Article 379 of the Criminal Code is classified as a minor offence.

Commentary of 2021 on the Criminal Code of the Republic of Kazakhstan 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 the 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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