Commentary on Article 406. Providing Assistance to Political Parties and Trade Unions of Foreign States under the Criminal Code of the Republic of Kazakhstan
1. Financing, providing premises or property, as well as rendering other assistance to political parties or trade unions of other states, if these acts have resulted in a substantial violation of the rights and legitimate interests of citizens or organizations, or of interests of society or the state protected by law, —
shall be punishable by a fine of up to two hundred monthly calculation indices, or correctional 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 paragraph 4 of Article 5 of the Constitution, activities of political parties and trade unions of foreign states, parties established on a religious basis, as well as the financing of political parties and trade unions by foreign legal entities and citizens, foreign states and international organizations, are not permitted in the Republic of Kazakhstan.
In accordance with paragraph 6 of Article 5 of the Law of the Republic of Kazakhstan dated July 15, 2002, “On Political Parties,” activities of political parties of other states are not permitted within the territory of the Republic of Kazakhstan.
The public danger of the criminal misdemeanor provided for in Article 406 of the Criminal Code lies in providing assistance to political parties and trade unions of foreign states, which is prohibited by the current legislation of Kazakhstan for the purpose of preserving the independence and sovereignty and ensuring the national security of the Republic of Kazakhstan.
The object of the criminal misdemeanor under consideration is the public relations ensuring the activities of governing bodies (the state and its apparatus: legislative and executive authorities, and officials).
The objective element of the criminal misdemeanor provided for in Article 406 of the Criminal Code consists in financing, providing premises or property, as well as rendering other assistance to political parties or trade unions of other states, if these acts have resulted in a substantial violation of the rights and legitimate interests of citizens or organizations, or of interests of society or the state protected by law.
Financing political parties or trade unions of other states should be understood as supplying them with monetary funds and financial resources.
Financing should be understood to include, alongside the provision of financial services, the provision or collection not only of monetary funds (in cash or non-cash form), but also of material assets (for example, uniform items, means of communication, the purchase of real estate or payment of its rental cost, provision of monetary funds intended for bribing officials, etc.), with awareness that such assets are intended to finance political parties or trade unions.
To provide premises means to make separate premises available for use by political parties or trade unions of other states and to supply them with such premises.
To provide property means to make a collection of items and material valuables available for use by political parties or trade unions of other states and to supply them with such property.
Rendering other assistance means using any methods of providing assistance, that is, helping, supporting, advising, etc.
By its legal construction, the composition of the criminal misdemeanor is material. Accordingly, the objective element of this act includes three mandatory features: firstly, a socially dangerous act consisting in financing, providing premises or property, as well as rendering other assistance to political parties or trade unions of other states; secondly, socially dangerous consequences expressed in causing a substantial violation of the rights and legitimate interests of citizens or organizations, or of 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.
The disposition of the criminal misdemeanor does not contain such features of the objective element as the time, place, method, circumstances, instruments and means of committing the criminal offense. Consequently, when qualifying the criminal misdemeanor provided for in Article 406 of the Criminal Code, the above-mentioned features shall not be of significance, although they should be taken into account when imposing punishment.
A substantial violation should be recognized as a violation of the constitutional rights and freedoms of an individual and citizen. When assessing property damage caused to a citizen as substantial, consideration should be given both to the monetary value of the property loss and lost profits, and to the victim's financial situation and the significance of the damage to that victim.
When assessing property damage caused to legal entities as substantial, consideration should be given to the monetary value of the material damage, its significance for the functioning of the enterprise or organization, and material losses (lost profits) associated with the disruption of the functioning of the legal entity.
If the above-mentioned consequences have not occurred and the act has not resulted in a substantial violation of the rights and legitimate interests of citizens or organizations, or of interests of society or the state protected by law, the elements of providing assistance to political parties and trade unions of foreign states as a criminal misdemeanor against the established order of governance are excluded. When deciding whether the violation caused is substantial, it is necessary to take into account the degree of negative impact of the unlawful act on the normal operation of an enterprise, organization or institution, as well as the nature and amount of the moral, physical or property damage caused, etc.
The subjective element of the criminal misdemeanor provided for in Article 406 of the Criminal Code is characterized by an intentional form of guilt in the form of direct or indirect intent. The guilty person is aware that, by financing, providing premises or property, as well as rendering other assistance to political parties or trade unions of other states, they are violating the rights and legitimate interests of citizens or organizations, or the interests of society or the state protected by law; they foresee the possibility or inevitability of socially dangerous consequences in the form of a substantial violation of the rights and legitimate interests of citizens or organizations, or of interests of society or the state protected by law, and desire or consciously allow such consequences to occur.
The subject of the criminal misdemeanor provided for in Article 406 of the Criminal Code is a sane natural person who has attained the age of 16.
The act provided for in Article 406 of the Criminal Code is classified as a criminal misdemeanor.
Note: Spelling errors and obvious typographical errors have been corrected, and a distorted fragment of the text has also been restored. The content and length of the text have been preserved. At the same time, the original contains an inconsistency: in one place, Article 405 of the Criminal Code is indicated instead of Article 406; in the corrected text, the article number has been changed to Article 406 of the Criminal Code.
2021 Commentary 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 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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