Commentary on Article 405 of the Criminal Code of the Republic of Kazakhstan. Organizing and Participating in the Activities of a Public or Religious Association or Other Organization after a Court Decision Prohibiting Their Activities or Ordering Their Liquidation in Connection with Their Engagement in Extremism or Terrorism

1. Organizing the activities of a public or religious association or other organization in respect of which there is a court decision that has entered into legal force prohibiting its activities or ordering its liquidation in connection with its engagement in extremism or terrorism —

shall be punishable by a fine in an amount 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 five years or without such deprivation, with expulsion from the Republic of Kazakhstan of a foreign national or stateless person for a period of five years.

2. Participating in the activities of a public or religious association or other organization in respect of which there is a court decision that has entered into legal force prohibiting its activities or ordering its liquidation in connection with its engagement in extremism or terrorism —

shall be punishable by a fine in an amount of up to two thousand monthly calculation indices, or corrective labour in the same amount, or restriction of liberty for a term of up to two 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 three years or without such deprivation, with expulsion from the Republic of Kazakhstan of a foreign national or stateless person for a period of five years.

Note. A person who voluntarily ceases participation in the activities of a public or religious association or other organization in respect of which there is a court decision that has entered into legal force prohibiting its activities or ordering its liquidation in connection with its engagement in extremism or terrorism shall be released from criminal liability, provided that their actions do not contain the elements of another criminal offence.

The public danger of the crime provided for in Article 405 of the Criminal Code lies in the engagement of public, religious or other organizations in extremism and terrorism, the manifestations of which pose a real threat to the foundations of statehood and the national security of the Republic of Kazakhstan.

The object of the crime under consideration is the public relations ensuring the activities of public and religious associations or other organizations. An additional object is the public relations ensuring the activities of the judicial authorities in securing the enforcement of a judgment, court decision or other judicial act.

The objective element of the crime provided for in Article 405 of the Criminal Code consists in organizing the activities of a public or religious association or other organization in respect of which there is a court decision that has entered into legal force prohibiting its activities or ordering its liquidation in connection with its engagement in extremism or terrorism.

Within the framework of this Article, organizing activities means organizational actions aimed at continuing or resuming the unlawful activities of a prohibited organization (for example, convening meetings, organizing the recruitment of new members, organizing marches, and using bank accounts, provided that such use is not related to the liquidation procedure).

Thus, organizing the activities of a public, religious or other association in respect of which there is a court decision that has entered into legal force prohibiting its activities or ordering its liquidation in connection with its engagement in extremism or terrorism should be understood as a combination of all actions (including management, financing and recruitment of individuals) aimed at ensuring the functioning of public, religious or other associations recognized by a court as extremist or terrorist.

According to Article 223 of the Civil Procedure Code, a court decision is a judicial act of a court of first instance by which a case is resolved on its merits, that is, an authoritative expression of the court's will, binding on all participants in the proceedings and enforceable through state coercion.

In accordance with Article 240 of the Civil Procedure Code, a decision of a court of first instance enters into legal force upon expiry of the time limit for filing an appeal or submitting an appellate motion by the prosecutor, provided that the decision has not been appealed and the prosecutor has not submitted an appellate motion.

According to Article 23 of the Law of the Republic of Kazakhstan "On Public Associations", the activities of a public association may be suspended for a period of three to six months by a court decision based on submissions from the prosecution authorities and internal affairs bodies, applications from local executive bodies of regions, cities of republican significance and the capital, or statements from citizens, in cases involving violations of the Constitution and legislation of the Republic of Kazakhstan or repeated actions by the public association that go beyond the purposes and objectives defined in its charter.

In the event that the activities of a public association are suspended, it is prohibited from using all mass media, conducting agitation and propaganda, organizing and holding peaceful assemblies and other mass events, and participating in elections. The public association's right to use bank deposits is also suspended, with the exception of settlements under employment contracts, compensation for damage caused as a result of its activities, and payment of fines.

If, during the established period of suspension of its activities, the public association eliminates the violations that served as grounds for suspending its activities, it shall resume its activities upon expiry of the specified period. If the public association fails to eliminate the violations or commits another violation of the legislation of the Republic of Kazakhstan, the prosecution authorities, internal affairs bodies, as well as local executive bodies of regions, cities of republican significance and the capital, and citizens shall have the right to apply to a court with an application for its liquidation.

The liquidation of a public association by a court decision means a prohibition on its activities, regardless of whether it is state-registered.

Grounds for the liquidation of or prohibition on the activities of a public association may include violations by the public association of the rights and freedoms of individuals and citizens; repeated or gross violations of the Constitution, constitutional laws, laws or other regulatory legal acts; or systematic engagement by the public association in activities contrary to the purposes set out in its charter.

In accordance with subparagraph 5) of Article 1 of the Law of the Republic of Kazakhstan dated 18 February 2005 "On Counteracting Extremism", extremist actions mean the direct implementation of actions for extremist purposes, including public calls to commit such actions, propaganda, agitation and public display of symbols of extremist organizations.

Extremism means the organization and (or) commission of:

Actions by an individual and (or) legal entity, or an association of individuals and (or) legal entities, on behalf of organizations recognized as extremist in accordance with the established procedure;

Actions by an individual and (or) legal entity, or an association of individuals and (or) legal entities, pursuing the following extremist objectives: the forcible change of the constitutional order, violation of the sovereignty of the Republic of Kazakhstan, the integrity, inviolability and inalienability of its territory, undermining the national security and defence capability of the State, the forcible seizure of power or forcible retention of power, the creation, leadership of and participation in an illegal paramilitary formation, the organization of and participation in an armed mutiny, and incitement of social or class discord (political extremism); incitement of racial, national and tribal discord, including discord associated with violence or calls for violence (national extremism); incitement of religious enmity or discord, including that associated with violence or calls for violence, as well as the application of any religious practice that poses a threat to the security, life, health, morality or rights and freedoms of citizens (religious extremism) (subparagraph 1) of Article 1 of the aforementioned Law).

An extremist group is an organized group pursuing the objective of committing one or more extremist crimes (subparagraph 8) of Article 1 of the aforementioned Law).

An extremist organization is a legal entity or an association of individuals and (or) legal entities that engages in extremism and has been recognized as extremist by a court (subparagraph 9) of Article 1 of the aforementioned Law).

According to Article 8 of the aforementioned Law, an organization shall be recognized as extremist if at least one of its structural divisions (branches or representative offices) engages in extremism with the knowledge of one of the governing bodies of that organization.

An organization carrying out its activities within the territory of the Republic of Kazakhstan and (or) another State shall be recognized as extremist by a court upon an application by a prosecutor, in accordance with the procedure established by the legislation of the Republic of Kazakhstan.

State bodies of the Republic of Kazakhstan are obliged, within the limits of their competence, to provide the prosecution authorities with materials necessary to establish the evidentiary basis required for the recognition of an organization as extremist.

According to subparagraph 5) of Article 1 of the Law of the Republic of Kazakhstan dated 13 July 1999 "On Counteracting Terrorism", terrorism means an ideology of violence and the practice of influencing decision-making by State bodies, local self-government bodies or international organizations through the commission or threat of commission of violent and (or) other criminal acts associated with intimidating the population and aimed at causing harm to individuals, society and the State.

A terrorist organization is an organization that engages in terrorist activities or recognizes the possibility of using terrorism in its activities, in respect of which a court decision recognizing it as terrorist has been adopted and entered into legal force (subparagraph 17) of Article 1 of the aforementioned Law).

Terrorist activity means the commission of any of the following acts:

Organization, planning, preparation, financing and implementation of an act of terrorism;

Incitement to an act of terrorism;

Organization of an illegal paramilitary formation, a criminal community (criminal organization) or an organized group for the purpose of committing an act of terrorism, as well as participation in such structures;

Recruitment, arming, training and use of terrorists;

Providing informational or other assistance in the organization, planning, preparation and commission of an act of terrorism;

Propaganda of terrorist ideas and dissemination of terrorist materials, including through the use of mass media or telecommunications networks;

Providing financial or legal assistance, or otherwise facilitating the activities of terrorists, as well as organizations whose activities have been recognized as terrorist in accordance with the legislation of the Republic of Kazakhstan, with awareness that the specified actions will be used to carry out terrorist activities or to support a terrorist organization.

By its legal construction, the elements of the crime are formal. The crime is considered completed from the moment the activities of a public or religious association or other organization in respect of which there is a court decision that has entered into legal force prohibiting its activities or ordering its liquidation in connection with its engagement in extremism or terrorism are organized, or from the moment a person participates in its activities.

The subjective element of the crime provided for in Article 405 of the Criminal Code is characterized by an intentional form of guilt in the form of direct intent. The perpetrator is aware that they are organizing the activities of a public or religious association or other organization in respect of which there is a court decision that has entered into legal force prohibiting its activities or ordering its liquidation in connection with its engagement in extremism or terrorism, and desires to do so.

As is known, motive and purpose do not affect the legal qualification of the offence; however, they are taken into account by the court when determining the punishment.

The subject of the crime provided for in Article 405 of the Criminal Code is a sane individual who has attained the age of 16.

Part 2 of Article 405 of the Criminal Code provides for liability for participation in the activities of a public or religious association or other organization in respect of which there is a court decision that has entered into legal force prohibiting its activities or ordering its liquidation in connection with its engagement in extremism or terrorism.

Participation in the activities of a public or religious association or other organization means the commission by a person of intentional actions aimed at achieving the objectives of the aforementioned organizations (conducting conversations for the purpose of promoting the activities of a prohibited organization, recruiting new participants, directly participating in events held by such an organization, etc.).

The law does not distinguish participation in the activities of extremist public or religious associations or other organizations according to the degree of activity of such participation.

According to the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated 8 December 2017 "On Certain Issues of Judicial Practice in the Application of Legislation on Terrorist and Extremist Crimes", participation in the activities of a terrorist or extremist group should be understood as joining the group (for example, taking an oath of allegiance, membership in an organization engaged in terrorist and (or) extremist activities, and carrying out tasks and instructions given by the group's leader).

A criminal offence in the form of participation by a person in a group shall be considered completed from the moment the person joins the group with the intention of participating in terrorist and (or) extremist activities or in the preparation for or commission of one or more criminal offences of a terrorist and (or) extremist nature.

The motives for participating in the activities of a public or religious association or other organization in respect of which there is a court decision that has entered into legal force prohibiting its activities or ordering its liquidation in connection with its engagement in extremism or terrorism (as well as for organizing such activities) are diverse: ideological, political, and incitement of racial, national, tribal, social or class discord (political extremism).

For qualification under Part 2 of Article 405 of the Criminal Code, in addition to the general characteristics, the subject of the crime must possess an additional characteristic, namely, the status of a participant in the activities of a public or religious association or other organization in respect of which there is a court decision that has entered into legal force prohibiting its activities or ordering its liquidation in connection with its engagement in extremism or terrorism.

Article 405 of the Criminal Code is a special provision in relation to Article 430 of the Criminal Code, "Failure to Enforce a Judgment, Court Decision or Other Judicial Act, or an Enforcement Document"; accordingly, qualification under Article 430 of the Criminal Code in conjunction with Article 405 is not required.

If an organizer (leader) or participant of a public or religious association or other organization commits a specific crime, their actions shall be qualified cumulatively under Part 1 or Part 2 of Article 405 of the Criminal Code and the relevant Article of the Special Part of the Criminal Code.

According to the Note to Article 405 of the Criminal Code, a person who voluntarily ceases participation in the activities of a public or religious association or other organization in respect of which there is a court decision that has entered into legal force prohibiting its activities or ordering its liquidation in connection with its engagement in extremism or terrorism shall be released from criminal liability, provided that their actions do not contain the elements of another criminal offence.

For the purposes of the aforementioned Note, voluntary cessation of participation in the activities of a public or religious association or other organization means the termination by a person of their criminal activities while being aware that they have the opportunity to continue them. This may be expressed, for example, in withdrawing from the membership of the aforementioned organizations, refusing to comply with instructions issued by their leaders, refusing to perform other actions that support the continued existence of the organization, or refusing to commit criminal acts.

The act provided for in Part 1 of Article 405 of the Criminal Code is classified as a serious crime.

The act provided for in Part 2 of Article 405 of the Criminal Code is classified as a minor crime.

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