Commentary on Article 403. Unlawful Interference by Members of Public Associations in the Activities of State Bodies of the Criminal Code of the Republic of Kazakhstan

1. Obstructing the lawful activities of state bodies or usurping the functions of state bodies or their officials by members of public associations, as well as establishing political party organizations within state bodies, if these acts have caused substantial harm to the rights and legitimate interests of individuals 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 labor 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, with deprivation of the right to hold certain positions or engage in certain activities for a period of up to one year, or without such deprivation.

2. The same acts committed by the leader of a public association —

shall be punishable by a fine in an amount 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, with deprivation of the right to hold certain positions or engage in certain activities for a period of up to three years.

According to Article 5 of the Constitution, ideological and political diversity is recognized in the Republic of Kazakhstan. The establishment of political party organizations within state bodies is not permitted. Public associations are equal before the law. Unlawful interference by the state in the affairs of public associations, and by public associations in the affairs of the state, as well as the assignment of the functions of state bodies to public associations, are not permitted.

The establishment and activities of public associations whose objectives or actions are aimed at forcibly changing the constitutional order, violating the integrity of the Republic, undermining state security, inciting social, racial, national, religious, class or tribal discord, as well as the establishment of paramilitary formations not provided for by law, are prohibited.

The public danger of the criminal misdemeanor provided for in Article 403 of the Criminal Code lies in the fact that it infringes upon freedom of association, which constitutes one of the most important constitutional rights of individuals and citizens, the exercise of which serves the interests of society and is protected by the state.

The object of the criminal misdemeanor under consideration is the social relations ensuring the functioning of public administration bodies (the state and its apparatus: legislative and executive authorities, as well as officials).

The objective element of the criminal misdemeanor provided for in Article 403 of the Criminal Code consists in obstructing the lawful activities of state bodies or usurping the functions of state bodies or their officials by members of public associations, as well as establishing political party organizations within state bodies, provided that these acts cause substantial harm to the rights and legitimate interests of individuals or organizations, or to the interests of society or the state protected by law.

According to subparagraph 25) of paragraph 1 of Article 4 of the Administrative Procedural and Process-Related Code of the Republic of Kazakhstan dated June 29, 2020 (this Code entered into force on July 1, 2021), a state body is understood as an organization of state power that, on behalf of the state and on the basis of the Constitution of the Republic of Kazakhstan, laws and other regulatory legal acts of the Republic of Kazakhstan, performs the following functions:

issuing acts establishing generally binding rules of conduct;

managing and regulating socially significant public relations;

monitoring compliance with generally binding rules of conduct established by the state.

According to Part 1 of Article 41 of the Administrative Procedural and Process-Related Code, the competence of a state body is understood as the aggregate of established powers of the state body that determine the subject matter of its activities, while the powers of a state body are understood as the rights and obligations of the state body.

The tasks of a state body are understood as the main areas of activity of the state body.

Obstructing the lawful activities of state bodies consists in the intentional commission of unlawful acts or omissions as a result of which state bodies are unable to carry out their activities, either fully or partially, in the manner and within the limits established by regulatory legal acts.

Obstruction may take the form of an attempt to prevent, terminate or alter the activities of state bodies in the present, or to prevent or preclude state bodies from performing their duties in the future. At the same time, obstruction covers not only the working hours of state bodies but also their non-working hours.

An official is a person who, on a permanent, temporary or special-authority basis, performs the functions of a representative of authority or carries out organizational and administrative or administrative and economic functions in state bodies, local self-government bodies, as well as in the Armed Forces of the Republic of Kazakhstan, other troops and military formations of the Republic of Kazakhstan (subparagraph 26) of Article 3 of the Criminal Code).

Article 2 of the Law of the Republic of Kazakhstan dated May 31, 1996, “On Public Associations,” establishes that public associations in the Republic of Kazakhstan are political parties, trade unions and other associations of citizens established on a voluntary basis to achieve common objectives that do not contradict the legislation. Public associations are non-profit organizations.

In accordance with Article 11 of the aforementioned Law, members (participants) of public associations may be citizens of the Republic of Kazakhstan and/or legal entities that are public associations, with the exception of political parties. The charters of public associations, other than political parties, may provide for membership (participation) of foreigners and stateless persons.

Article 1 of the Law of the Republic of Kazakhstan dated July 15, 2002, “On Political Parties,” defines a political party as a voluntary association of citizens of the Republic of Kazakhstan that expresses the political will of citizens and various social groups for the purpose of representing their interests in representative and executive state authorities and local self-government bodies, and participating in their formation.

The establishment of political party organizations within state bodies means the formation of a group of people within an institution, enterprise or organization who are united by a common idea and objective.

By its legal structure, the corpus delicti of the criminal misdemeanor provided for in Article 403 of the Criminal Code is a material offense. Accordingly, the objective element of this act includes three mandatory features: firstly, a socially dangerous act consisting in obstructing the lawful activities of state bodies or usurping the functions of state bodies or their officials by members of public associations, as well as establishing political party organizations within state bodies; secondly, socially dangerous consequences expressed in causing substantial harm to the rights and legitimate interests of individuals or organizations, or to the interests of society or the state protected by law; and thirdly, a causal relationship between the violations and the consequences specified in the law. Accordingly, the act is considered completed from the moment the socially dangerous consequences occur.

Causing substantial harm is an evaluative legal concept determined by the investigative authorities, taking into account the factual circumstances of the committed act. Such harm may be caused to both individuals and legal entities. At the same time, the legality of the perpetrator'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 the violation of the lawful rights and interests of citizens. Furthermore, where the actions of the perpetrator have resulted in substantial harm to the rights or legitimate interests of individuals or organizations, or to the interests of society or the state protected by law, such harm may be expressed in the infliction of significant material damage, the violation of citizens' constitutional rights to freedom of movement, the use of residential premises, and so forth.

The subjective element of the criminal misdemeanor provided for in Article 403 of the Criminal Code is characterized by an intentional form of guilt in the form of direct or indirect intent. The person is aware that, through their actions, they will obstruct the lawful activities of state bodies, usurp their functions, or establish a political party organization; 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 interests of society or the state protected by law; and desires or consciously permits the occurrence of such consequences.

The subject of the offense may be any sane natural person who has reached the age of 16.

Part 2 of Article 403 of the Criminal Code provides for criminal liability as a qualifying circumstance for the same acts committed by the leader of a public association.

According to subparagraph 21) of Article 3 of the Criminal Code, a leader of a public association is the head of a public association, as well as another participant of a public association who, through their influence and authority, is capable of exercising unilateral managerial influence over the activities of that public association.

The acts provided for in Parts 1 and 2 of Article 403 of the Criminal Code are classified as criminal misdemeanors.

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

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