Commentary on Article 400 of the Criminal Code of the Republic of Kazakhstan. Violation of the Procedure for Organizing and Holding Peaceful Assemblies
1. Organizing, holding or participating in an unlawful assembly, rally, march, picket, demonstration or other unlawful public event, as well as assisting in the organization or holding of such events by providing premises, means of communication, equipment or transport, if these acts have caused substantial harm to the rights and legitimate interests of individuals or organizations, or to the legally protected interests of society or the State, —
shall be punishable by a fine of up to two hundred monthly calculation indices, or corrective labor 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.
In accordance with Article 32 of the Constitution of the Republic of Kazakhstan, citizens of the Republic of Kazakhstan have the right to assemble peacefully and without weapons, and to hold assemblies, rallies and demonstrations, marches and pickets. The exercise of this right may be restricted by law in the interests of national security, public order, public health, and the protection of the rights and freedoms of other persons.
The public danger of the criminal misdemeanor provided for in Article 400 of the Criminal Code lies in the fact that it infringes upon the normal functioning of government authorities and may also lead to mass riots, the destruction of buildings and structures, and other harmful consequences.
The object of the criminal misdemeanor under consideration is the public relations ensuring the activities of government authorities (the State and its apparatus: legislative and executive authorities and officials).
The objective element of the criminal misdemeanor provided for in Article 400 of the Criminal Code consists of organizing, holding or participating in unlawful assemblies, rallies, marches, pickets, demonstrations or other unlawful public events, as well as assisting in the organization or holding of such events by providing premises, means of communication, equipment or transport, if these acts have caused substantial harm to the rights and legitimate interests of individuals or organizations, or to the legally protected interests of society or the State.
The procedure for holding peaceful assemblies is regulated by the Law of the Republic of Kazakhstan dated May 25, 2020, “On the Procedure for Organizing and Holding Peaceful Assemblies in the Republic of Kazakhstan.”
Organization means initiating and directing the holding of any event, undertaking or process. Holding means performing, carrying out or implementing certain actions. Within the meaning of the article under consideration, holding an event may involve finding participants and preparing posters.
Although organization and holding are, in essence, alternative actions, organization generally includes the actual holding of assemblies, rallies, marches, pickets, demonstrations or other public events.
Participation means cooperation or activity aimed at jointly carrying out a common undertaking. Participation in assemblies, rallies, marches, pickets, demonstrations or other public events may be expressed through chanting slogans or marching with posters. At the same time, actual presence at the above-mentioned events does not always constitute participation in such events.
According to the Law of the Republic of Kazakhstan “On the Procedure for Organizing and Holding Peaceful Assemblies in the Republic of Kazakhstan,” a peaceful assembly is a public event that is peaceful, non-violent and unarmed in nature, does not pose a threat to the interests of national security, public order, public health, the protection of public morality, or the rights and freedoms of other persons, and is held by citizens of the Republic of Kazakhstan in the form of an assembly, rally or demonstration, march or picket.
An assembly is the joint presence of citizens of the Republic of Kazakhstan at a specific place and at a specific time for the purpose of collectively and publicly discussing socially significant issues and/or the actions (inaction) of persons and/or bodies or organizations (subparagraph 7) of Article 1 of the aforementioned Law).
A rally is the joint presence of citizens of the Republic of Kazakhstan at a specific place and at a specific time for the purpose of publicly expressing an opinion on socially significant issues and/or the actions (inaction) of persons and/or bodies or organizations, carried out with or without the use of sound-amplifying technical equipment, posters, banners and other means of visual campaigning, with or without the presentation of demands (subparagraph 8) of Article 1 of the aforementioned Law).
A march is the movement of a citizen or a group of citizens of the Republic of Kazakhstan, without the use of vehicles, at a specific time along a specific route for the purpose of publicly expressing an opinion on socially significant issues and/or the actions (inaction) of persons and/or bodies or organizations, carried out with or without the use of sound-amplifying technical equipment, posters, banners and other means of visual campaigning, with or without the presentation of demands (subparagraph 12) of Article 1 of the aforementioned Law).
A picket is the presence of one citizen of the Republic of Kazakhstan at a specific place and at a specific time for the purpose of publicly expressing an opinion on socially significant issues and/or the actions (inaction) of persons and/or bodies or organizations, carried out without movement and without the use of sound-amplifying technical equipment, with or without the use of posters, banners and other means of visual campaigning (subparagraph 10) of Article 1 of the aforementioned Law).
A demonstration is the movement of a citizen or a group of citizens of the Republic of Kazakhstan at a specific time along a specific route for the purpose of publicly expressing an opinion on socially significant issues and/or the actions (inaction) of persons and/or bodies or organizations, carried out using vehicles, with or without the use of sound-amplifying technical equipment, posters, banners and other means of visual campaigning, with or without the presentation of demands (subparagraph 5) of Article 1 of the aforementioned Law).
A public event is an open, peaceful and accessible-to-everyone action held in various forms and initiated by citizens of the Republic of Kazakhstan, political parties or public associations. The purpose of such an action is the free expression and formation of opinions, as well as the presentation of demands concerning various issues of the country's political, economic, social and cultural life.
The unlawfulness of the actions specified in the disposition of the article under consideration means that they are committed in violation of the established procedure, that is, in violation of the Law of the Republic of Kazakhstan “On the Procedure for Organizing and Holding Peaceful Assemblies in the Republic of Kazakhstan,” as well as other regulatory legal acts governing the organization and holding of assemblies, rallies, marches, pickets, demonstrations or other public events.
For the purposes of the article under consideration, assistance means active involvement in the organization, holding or participation in unlawful assemblies, rallies, marches, pickets, demonstrations or other unlawful public events, with the aim of facilitating, helping or supporting the above-mentioned actions. Assistance may be expressed through the provision of premises, means of communication, equipment or transport.
By its legal structure, the corpus delicti of the criminal misdemeanor is material in nature. Accordingly, the objective element of this act includes three mandatory characteristics: firstly, a socially dangerous act consisting of organizing, holding or participating in unlawful assemblies, rallies, marches, pickets, demonstrations or other unlawful public events, as well as assisting in the organization or holding of such events by providing premises, means of communication, equipment or transport; secondly, socially dangerous consequences expressed in causing substantial harm to the rights and legitimate interests of individuals or organizations, or to the legally protected interests of society or the State; and thirdly, a causal relationship between the violations and the consequences specified by law. Accordingly, the act is considered completed from the moment the socially dangerous consequences occur. The disposition of this criminal misdemeanor does not contain such characteristics of the objective element as the time, place, method, circumstances, instruments or means of committing the criminal offense. Consequently, when qualifying the criminal misdemeanor provided for in Article 400 of the Criminal Code, the above-mentioned characteristics shall not be of significance; however, they should be taken into account when imposing a sentence.
Causing substantial harm is an evaluative category determined by the investigative authorities, taking into account the factual circumstances of the act committed. Such harm may be caused to both individuals and legal entities. At the same time, the lawfulness of the offender's actions may also be challenged in the interests of third parties.
Depending on the nature of the unlawful consequences, substantial harm may be recognized as property damage in the form of direct actual loss or lost profits, or a violation of the legitimate rights and interests of citizens. Furthermore, where the actions of the offender have resulted in substantial harm to the rights or legitimate interests of citizens or organizations, or to the legally protected interests of society or the State, such harm may be expressed in significant material damage, violations of citizens' constitutional rights to freedom of movement, the use of residential premises, and so forth.
Depending on the nature of the unlawful consequences, substantial harm in this case may also be recognized as property damage in the form of direct actual loss or lost profits, or a violation of the legitimate rights and interests of citizens or organizations (housing, labor and other rights).
The subjective element of the criminal misdemeanor provided for in Article 400 of the Criminal Code is characterized by an intentional form of guilt. The offender is aware that they are organizing, holding or participating in an unlawful assembly, rally, march, picket, demonstration or other unlawful public event, or assisting in the organization or holding of such events by providing premises, means of communication, equipment or transport; foresees the possibility or inevitability of socially dangerous consequences in the form of substantial harm to the rights and legitimate interests of individuals or organizations, or to the legally protected interests of society or the State; and desires the occurrence of such consequences.
As is known, motive and purpose do not affect the legal classification of the act; however, they are taken into account by the court when imposing a sentence.
The subject of the criminal misdemeanor provided for in Article 400 of the Criminal Code is a sane natural person who has reached the age of sixteen.
The act provided for in Article 400 of the Criminal Code falls within the category of criminal misdemeanors.
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 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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