Commentary on Article 381 of the Criminal Code of the Republic of Kazakhstan. Obstruction of the Activities of a Prosecutor and Failure to Comply with His Lawful Demands
1. Failure to comply with acts of prosecutorial supervision, as well as obstruction of its activities, if this has caused 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 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 the criminal misdemeanour provided for in Article 381 of the Criminal Code lies in the fact that its commission violates the principle of the exercise of supreme supervision by the Prosecutor's Office, guaranteed by the Constitution of the Republic of Kazakhstan.
According to paragraph 1 of Article 83 of the Constitution of the Republic of Kazakhstan, the Prosecutor's Office, on behalf of the State, exercises, within the limits and forms established by law, supreme supervision over compliance with the lawfulness throughout the territory of the Republic of Kazakhstan, represents the interests of the State in court and conducts criminal prosecution on behalf of the State.
In cases where acts of this kind are committed, the prosecution authorities will be unable to respond promptly and in a timely manner to facts involving violations of the lawfulness.
The object of the criminal misdemeanour under consideration is the public relations ensuring the activities of the prosecution authorities, regulated by the Constitution and the Law of the Republic of Kazakhstan dated 30 June 2017 “On the Prosecutor's Office”.
The objective element of the criminal misdemeanour under consideration consists in failure to comply with acts of prosecutorial supervision, as well as obstruction of its activities, if this has caused substantial harm to the rights and legitimate interests of citizens or organizations, or to the interests of society or the State protected by law.
Non-compliance (failure to perform) means the failure to carry out something that was intended, assigned, etc., or a failure in the performance of work.
Acts of prosecutorial supervision are specific legal acts issued exclusively by a prosecutor in the exercise of his powers, through which he addresses competent authorities with a demand to eliminate violations of laws and bring the persons responsible to liability.
According to Article 23 of the Law of the Republic of Kazakhstan “On the Prosecutor's Office”, the main acts of prosecutorial supervision are protests, sanctions, instructions, submissions and resolutions.
In accordance with the aforementioned Law, a prosecutor lodges a protest against normative and other legal acts, as well as actions (inaction) of State bodies and officials that contradict the Constitution, laws, acts of the President of the Republic of Kazakhstan and international treaties ratified by the Republic.
Prosecutors may not lodge protests against legislative acts, acts of the President of the Republic of Kazakhstan, acts of the Administration of the President of the Republic of Kazakhstan, acts of the Constitutional Council, normative resolutions of the Supreme Court, acts of the Supreme Judicial Council, acts of the Accounts Committee for Control over the Execution of the Republican Budget (following completed inspections), or normative acts of a technical nature.
A protest is lodged with the body or official who adopted the unlawful act or decision, or with a superior body or superior official. Unlawful actions (inaction) of a body or official are challenged through a protest in the same manner.
A prosecutor's protest shall be considered by the relevant body or official within ten calendar days.
The prosecutor shall be entitled to establish a different period for consideration of the protest, determined by the need to prepare and adopt a decision on it, but such period may not be less than ten calendar days.
The body or official shall be obliged to notify the prosecutor of the time and place of consideration of the protest.
In the protest, the prosecutor demands the annulment of the unlawful act or its alignment with the Constitution, laws, acts of the President of the Republic of Kazakhstan and international treaties ratified by the Republic, as well as the termination of the unlawful action (inaction) of the official and the restoration of the violated right.
Before a decision is adopted on the protest, the Prosecutor General, Deputy Prosecutors General, regional prosecutors and prosecutors equated to them shall be entitled to suspend the execution of the contested legal act or action if its execution has resulted in or may result in irreversible consequences for human life and health or for the security of the Republic of Kazakhstan.
The grounds, procedure and time limits for lodging protests against judicial acts that have entered into legal force, as well as the suspension of their execution, shall be determined by criminal procedure legislation, civil procedure legislation and legislation on administrative offences (Article 24 of the aforementioned Law).
In cases established by law, a prosecutor grants a sanction (consent) for the performance of certain actions of a rights-restricting nature and for obtaining information containing secrets protected by law.
The granting of a sanction (consent) or refusal to grant it shall be formalized by the prosecutor through a resolution and signature on the decision of the official after examining the materials on the basis of which the sanction is requested.
In the event of refusal to grant a sanction (consent), the reasons and grounds for such refusal shall be indicated.
A sanction (consent) may also be certified by means of an electronic digital signature in accordance with the legislation on electronic documents and electronic digital signatures (Article 25 of the Law).
A prosecutor issues written instructions on matters relating to pre-trial investigations; operational-investigative activities and covert investigative actions; and in other cases established by law.
Instructions issued by a prosecutor within the scope of his competence shall be binding upon the heads and employees of bodies conducting pre-trial investigations, operational-investigative activities and covert investigative actions (Article 26 of the Law).
Within the scope of his competence, a prosecutor submits representations concerning the elimination of violations of the lawfulness; the elimination of causes and conditions contributing to the commission of criminal and other offences; matters relating to the deprivation of immunity of persons entitled to such immunity in accordance with the Constitution of the Republic of Kazakhstan; and in other cases established by law.
A representation shall be considered by an official or body within thirty calendar days, and in cases where irreversible consequences may arise for the life and health of a person and citizen or for the security of the State, within the period established by the prosecutor.
The prosecutor shall be entitled to participate in the consideration of the representation. The State body or official shall notify the prosecutor of the time and place of consideration of the representation no later than three working days before the date of its consideration.
The prosecution authorities shall be informed of the results of consideration of the representation and the measures taken within three working days from the date of its consideration (Article 27 of the Law).
A prosecutor issues resolutions provided for by criminal procedure legislation and legislation on administrative offences, concerning the initiation of disciplinary proceedings, conducting an inspection, compulsory attendance, suspension of the effect of a legal act, as well as in other cases provided for by law.
A prosecutor's resolution shall be subject to mandatory execution by the authorized body or official (Article 28 of the Law).
Thus, failure to comply with acts of prosecutorial supervision consists in the failure to fulfil (implement) the requirements (instructions) stipulated in the prosecutor's individual legal acts: a protest, sanction, instruction, representation or resolution.
The procedure governing the activities of the Prosecutor's Office is determined by the Constitution and the Law of the Republic of Kazakhstan “On the Prosecutor's Office”.
A prosecutor is an employee of the prosecution authorities who exercises the powers established by the aforementioned Law for the purpose of implementing the functions of the Prosecutor's Office.
According to Article 44 of the Law of the Republic of Kazakhstan “On the Prosecutor's Office”, a prosecutor, in accordance with his competence, shall be entitled to: perform actions and adopt procedural decisions on the grounds and in the manner established by criminal procedure law; in cases and in the manner provided for by legislation, request materials relating to operational-investigative activities and cases concerning administrative offences, and obtain from heads and other officials the necessary documents, materials, statistical information and other data concerning the state of lawfulness and the measures being taken to ensure it; participate in court hearings and provide opinions on cases on the grounds and in the manner established by law, request court cases from the court, and submit applications and protests for the review of judicial acts; conduct inspections in the manner prescribed by law, engage specialists to participate in such inspections and provide opinions, as well as involve employees of other law enforcement agencies in conducting inspections in order to ensure security and supervisory activities; appoint examinations, require authorized bodies to conduct inspections of materials and applications received by the Prosecutor's Office, and oblige them to report the results thereof; obtain access, on the grounds and in the manner established by legislation, to information contained in information systems and resources integrated with the information exchange system of law enforcement, special State and other bodies; summon officials, individuals and representatives of legal entities to obtain explanations on matters relating to an inspection being conducted or an application being considered; demand the cancellation of prohibitive or restrictive measures imposed by officials, and suspend the effect of an unlawful act in whole or in part where there are grounds and in the manner prescribed by law; initiate and terminate proceedings in cases concerning administrative offences in the manner prescribed by legislation on administrative offences; obtain access, in the manner established by legislation, to documents and materials related to the conduct of inspections; participate in the development and consideration of draft normative legal acts; cooperate with institutions of other States and international organizations; participate in the establishment and improvement of information systems in the field of legal statistics and special records for the purpose of ensuring lawfulness and public order and combating crime; and perform other actions provided for by law.
Obstruction of the activities of a prosecutor consists in the intentional commission of unlawful actions or inaction whereby the prosecutor is prevented from fully or partially carrying out his activities in the manner and within the limits established by the Constitution and the Law of the Republic of Kazakhstan “On the Prosecutor's Office”, that is, from exercising the opportunities (powers) granted to him by the Constitution and the aforementioned Law.
Obstruction may take the form of an attempt to prevent, terminate or modify the activities of a prosecutor.
Obstruction may take various forms, including requests, blackmail, persuasion, etc.
For the elements of the criminal misdemeanour under analysis to be present, the obstruction must relate to the lawful activities of the prosecutor, while the non-compliance must be connected with failure to comply with the prosecutor's lawful demands.
By its legal construction, the elements of this criminal misdemeanour constitute a material offence. Accordingly, the objective element of this act includes three mandatory features. First, it is a socially dangerous act consisting in failure to comply with acts of prosecutorial supervision, as well as obstruction of the prosecutor's activities. Second, it involves socially dangerous consequences expressed 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. Third, there must be a causal relationship between the violations and the consequences specified in the law. Accordingly, the act shall be considered completed from the moment the socially dangerous consequences occur.
The concept of substantial harm is defined in subparagraph 14) of Article 3 of the Criminal Code. In the absence of substantial harm as a consequence of obstructing the activities of a prosecutor and failing to comply with his lawful demands, the person shall be held administratively liable under Article 667 of the Code of Administrative Offences of the Republic of Kazakhstan, “Obstruction of the Lawful Activities of a Prosecutor, Investigator, Inquiry Officer, Court Bailiff or Judicial Enforcement Officer”.
For example, complaints were received by the Prosecutor's Office of the city of Rudny from people standing in the queue for apartments. The residents stated that the apartment queue was not progressing. During the inspection, S., Head of the State Institution “Rudny City Department of Housing and Communal Services, Passenger Transport and Highways”, refused to provide documents to the prosecution employees, citing various reasons. S. was lawfully held administratively liable, since the obstruction of the lawful activities of the prosecutor did not result in substantial harm to the rights and legitimate interests of society or the State.
The disposition of the elements of this criminal misdemeanour does not contain such features of the objective element as the time, place, method, circumstances, instruments and means of committing the criminal offence. Consequently, when qualifying the criminal misdemeanour provided for in Article 381 of the Criminal Code, the aforementioned features shall not be of significance, although they should be taken into account when imposing punishment.
The subjective element of the criminal misdemeanour provided for in Article 381 of the Criminal Code is characterized by an intentional form of guilt. In this regard, intent may be either direct or indirect. The perpetrator is aware of the socially dangerous nature of failing to comply with acts of prosecutorial supervision and/or obstructing the activities of a prosecutor, foresees the possibility or inevitability of 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, desires the occurrence of such harm or consciously allows it to occur, or remains indifferent to its occurrence.
The act under consideration has a mandatory subjective feature (special purpose) — obstruction of the activities of a prosecutor, that is, the perpetrator's intention to interrupt or terminate such activities.
The subject of the criminal misdemeanour under analysis may be any sane person who has reached the age of sixteen.
The act provided for in Article 381 of the Criminal Code belongs to the category of criminal misdemeanours.
2021 Commentary 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 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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