Commentary on Article 404. Establishment, Leadership of, and Participation in the Activities of Illegal Public and Other Associations of the Criminal Code of the Republic of Kazakhstan
1. The establishment or leadership of a religious or public association whose activities involve violence against citizens or otherwise causing harm to their health, or inciting citizens to refuse to perform their civil duties or to commit other unlawful acts, as well as the establishment or leadership of a party based on religion, or a political party or trade union financed from sources prohibited by the laws of the Republic of Kazakhstan —
shall be punishable by a fine of up to six thousand monthly calculation indices, or corrective labour in the same amount, or restriction of liberty for a term of up to six 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 six years.
2.
The establishment of a public association that proclaims or, in practice, implements racial, national, tribal, social, class or religious intolerance or exclusivity, or calls for the violent overthrow of the constitutional order, undermining the security of the State or encroachment upon the territorial integrity of the Republic of Kazakhstan, as well as leadership of such an association —
shall be punishable by imprisonment for a term of three to seven years, with deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years.
3.
Active participation in the activities of associations specified in Parts One or Two of this Article —
shall be punishable by a fine of up to six thousand monthly calculation indices, or corrective labour in the same amount, or restriction of liberty for a term of up to six years, or imprisonment for the same term.
In accordance with Paragraph 3 of Article 5 of the Constitution, the establishment and activities of public associations whose objectives or actions are aimed at the violent alteration of the constitutional order, violation of the integrity of the Republic, undermining the security of the State, incitement of social, racial, national, religious, class and tribal discord, as well as the establishment of paramilitary formations not provided for by law, are prohibited in the Republic of Kazakhstan.
Pursuant to Paragraph 4 of Article 5 of the Constitution, the activities of political parties and trade unions of other states, parties based on religion, as well as the financing of political parties and trade unions by foreign legal entities and citizens, foreign states and international organisations, are not permitted in the Republic of Kazakhstan.
In accordance with Article 5 of the Law of the Republic of Kazakhstan “On Public Associations”, the establishment and activities of public associations pursuing extremist objectives, as well as the establishment of paramilitary formations not provided for by the legislation of the Republic of Kazakhstan, are prohibited.
The establishment of public associations modelled on paramilitary formations having a paramilitary structure, uniforms, special insignia, anthems, flags, pennants, special internal disciplinary and management arrangements, and weapons, including imitation weapons, is prohibited within the territory of the Republic of Kazakhstan.
The activities of political parties and trade unions of other states, parties based on religion, as well as the financing of political parties and trade unions by foreign legal entities and citizens, foreign states and international organisations, are not permitted.
The establishment and activities of public associations that encroach upon the health and moral foundations of citizens, as well as the activities of unregistered public associations, are not permitted.
The public danger of the offence provided for in Article 404 of the Criminal Code lies in the fact that it infringes upon the legal foundations governing the establishment of public associations and political parties, their rights and obligations, guarantees of their activities, and relations between political parties and government bodies and other organisations.
The object of the offence under consideration is public relations ensuring the activities of religious and public associations, political parties and trade unions. An additional object is the health, honour and dignity of victims, as well as public relations guaranteeing their protection.
The objective aspect of the offence provided for in Article 404 of the Criminal Code consists in establishing or leading a religious or public association whose activities involve violence against citizens or otherwise causing harm to their health, or inciting citizens to refuse to perform their civil duties or to commit other unlawful acts, as well as establishing or leading a party based on religion, or a political party or trade union financed from sources prohibited by the laws of the Republic of Kazakhstan.
In accordance with Article 2 of the Law of the Republic of Kazakhstan “On Public Associations”, public associations in the Republic of Kazakhstan are recognised as political parties, trade unions and other associations of citizens established on a voluntary basis for the achievement of common objectives that do not contradict the legislation. Public associations are non-profit organisations.
According to Subparagraph 4) of Article 1 of the Law of the Republic of Kazakhstan dated 11 October 2011 “On Religious Activities and Religious Associations”, a religious association is understood to mean a voluntary association of citizens of the Republic of Kazakhstan, foreigners and stateless persons who have united, in accordance with the procedure established by the legislative acts of the Republic of Kazakhstan, on the basis of common interests for the purpose of satisfying spiritual needs.
According to Article 3 of the Law of the Republic of Kazakhstan “On Religious Activities and Religious Associations”, religious associations:
- do not perform the functions of state bodies and do not interfere in their activities;
- do not participate in the activities of political parties, do not provide them with financial support and do not engage in political activities;
- are obliged to comply with the requirements of the legislation of the Republic of Kazakhstan.
The activities of parties based on religion, as well as the establishment and activities of religious associations whose objectives and actions are aimed at establishing the supremacy of one religion in the State, inciting religious hostility or discord, including those associated with violence or calls for violence and other unlawful acts, are prohibited.
The establishment of a religious or public association involves the performance of active actions, such as recruiting members for such associations, persuading or encouraging individuals to join them, developing programmes and activity plans, seeking financial and other material resources necessary for the existence of the above-mentioned associations, and so forth.
The establishment of a religious or public association means both the formal founding of such an association and its actual organisation without official registration.
Leadership of a religious or public association means active management of an already established association, for example, training and ideological indoctrination of association members; distributing responsibilities among them when committing any unlawful acts, and so forth.
The activities of a religious or public association must be unlawful, that is, they must involve violence against citizens or otherwise causing harm to their health, or inciting citizens to refuse to perform their civil duties or to commit other unlawful acts.
Violence, as one of the characteristics of a prohibited association, implies the use of various forms of violence by some of its members against others in accordance with the ideology cultivated within the association.
Article 1 of the Law of the Republic of Kazakhstan “On Political Parties” defines a political party as a voluntary association of citizens of the Republic of Kazakhstan expressing the political will of citizens and various social groups for the purpose of representing their interests in representative and executive bodies of state power and local self-government, and participating in the formation of such bodies.
In accordance with Subparagraph 6) of Article 1 of the Law of the Republic of Kazakhstan dated 27 June 2014 “On Trade Unions”, a trade union is a public association with fixed membership, voluntarily established on the basis of common labour, industrial and professional interests of citizens of the Republic of Kazakhstan for the representation and protection of the labour and socio-economic rights and interests of its members.
According to the Economic Dictionary, sources of financing are existing and anticipated sources of obtaining financial resources, as well as a list of economic entities capable of providing such resources.
By its legal construction, the corpus delicti is formal. The offence is considered completed when one of the actions specified in the disposition of this Article has been committed.
The subjective aspect is characterised by an intentional form of guilt in the form of direct intent. The perpetrator is aware that they are establishing or leading a religious or public association, a party based on religion, or a political party or trade union financed illegally in the Republic of Kazakhstan, and desires to do so.
The subject of the offence is a sane natural person who has reached the age of 16.
Part Two of Article 404 of the Criminal Code provides for criminal liability for establishing a public association that proclaims or, in practice, implements racial, national, tribal, social, class or religious intolerance or exclusivity, or calls for the violent overthrow of the constitutional order, undermining the security of the State or encroachment upon the territorial integrity of the Republic of Kazakhstan, as well as for leading such an association.
The objective aspect of the offence provided for in Part Two of Article 404 of the Criminal Code consists in establishing a public association that proclaims or, in practice, implements racial, national, tribal, social, class or religious intolerance or exclusivity, or calls for the violent overthrow of the constitutional order, undermining the security of the State or encroachment upon the territorial integrity of the Republic of Kazakhstan, as well as leading such an association.
As noted above, the establishment of a public association involves performing actions as a result of which the association becomes ready to function (recruiting members, developing the ideology of the association, drafting its charter, registering its constituent documents, and so forth).
Leadership of a public association is active management of an already established association, including determining its objectives and the means of achieving them.
Intolerance is an unwillingness or inability to tolerate someone or something. It is a lack of respect for the habits and beliefs (convictions) of other people, an inability to accept differences and an unwillingness to coexist with those who are different. Exclusivity is a distinctive characteristic or peculiarity inherent only in certain persons.
Racial intolerance and exclusivity mean an unwillingness to tolerate or respect a particular category of citizens united by common inherited physical characteristics (skin colour, eye colour, hair colour, skull shape, etc.), as well as a negative attitude towards other races.
National intolerance and exclusivity mean an unwillingness to tolerate or respect a particular nation and a negative attitude towards other nations.
Tribal intolerance and exclusivity mean an unwillingness to tolerate or respect a group of people who trace their origin to a common ancestor — the founder of a tribe or clan progenitor along one line of descent (maternal or paternal).
Social intolerance and exclusivity mean an unwillingness to tolerate or respect other groups of people who differ from one's own group and are united by a common significant social characteristic on the basis of which they participate in a particular activity connected by a system of relations regulated by formal or informal social institutions.
Class intolerance and exclusivity mean an unwillingness to tolerate or respect certain groups of people who differ from one's own group in terms of their legal status. Membership in an estate or class is generally inherited.
Religious intolerance and exclusivity mean an unwillingness to tolerate or respect other religious beliefs.
The constitutional order is a system of social, economic and political-legal relations established and protected by the Constitution and other constitutional legal acts of the State. The main legal source establishing the constitutional order of a State is its Constitution. Consequently, the constitutional order is a set of constitutional provisions establishing the fundamental principles of the State's functioning.
Thus, calls for the violent overthrow of the constitutional order are appeals to citizens proposing the destruction of the socio-economic and political-legal foundations of the Republic of Kazakhstan.
State security is the level of protection of the State against external and internal threats. Undermining the security of the State means intentional actions aimed at causing harm to the internal and external stability of the State and weakening its level of protection.
The territorial integrity of a State is a principle of public international law according to which the territory of a State is inviolable against encroachments by other states through the use of military force or the threat of force.
In accordance with Paragraph 2 of Article 2 of the Constitution of the Republic of Kazakhstan, the State ensures the integrity, inviolability and inalienability of its territory.
Encroachment upon territorial integrity means an unlawful attempt to dispose of the territory of the Republic of Kazakhstan. Such encroachments may take the form of agitation for the unlawful separation of a particular territory of the State, calls for its seizure by another State, and so forth.
Calls are understood to include both oral statements and appeals in written or other forms (for example, speeches at meetings and rallies, distribution of leaflets and posters, publication of relevant information in magazines, brochures, books, placement of such information on websites, forums or blogs, mass distribution of electronic messages and other similar actions, including those intended to enable other persons to become acquainted with the information subsequently), calling for the violent overthrow of the constitutional order, undermining the security of the State or encroachment upon the territorial integrity of the Republic of Kazakhstan.
By its legal construction, the corpus delicti provided for in Part Two of Article 404 of the Criminal Code is formal. The offence is considered completed from the moment of establishment (as well as leadership) of a public association that proclaims or, in practice, implements racial, national, tribal, social, class or religious intolerance or exclusivity, or calls for the violent overthrow of the constitutional order, undermining the security of the State or encroachment upon the territorial integrity of the Republic of Kazakhstan.
The subjective aspect of the corpus delicti provided for in Part Two of Article 404 of the Criminal Code is likewise characterised by an intentional form of guilt in the form of direct intent. The perpetrator is aware that they are establishing or leading a public association that proclaims or, in practice, implements racial, national, tribal, social, class or religious intolerance or exclusivity, or calls for the violent overthrow of the constitutional order, undermining the security of the State or encroachment upon the territorial integrity of the Republic of Kazakhstan, and desires to do so.
The subject of the offence provided for in Part Two of Article 404 of the Criminal Code is a sane natural person who has reached the age of 16.
Part Three of Article 404 of the Criminal Code provides for active participation in the activities of associations specified in Parts One or Two of this Article as a qualifying element.
Active participation should be understood as energetic and intensified participation (cooperation) in the activities of the above-mentioned associations.
The acts provided for in Parts One, Two and Three of Article 404 of the Criminal Code are classified as serious crimes.
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 National Academy of Natural Sciences of Kazakhstan, 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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