Commentary on Article 407. Obstruction of the Administration of Justice and the Conduct of Pre-trial Investigations of the Criminal Code of the Republic of Kazakhstan

1. Interference in any form with the activities of a court for the purpose of obstructing the administration of justice —

shall be punishable by a fine in an amount of up to two thousand monthly calculation indices, or correctional labour in the same amount, or community service for a period of up to six hundred hours, or restriction of liberty for a period of up to two years, or imprisonment for the same period.

2. Interference in any form with the activities of a prosecutor or a person conducting a pre-trial investigation for the purpose of obstructing a comprehensive, complete and objective pre-trial investigation —

shall be punishable by a fine in an amount of up to one hundred and sixty monthly calculation indices, or correctional labour 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.

3. Acts provided for in Parts One or Two of this Article, committed by a person through the use of their official position —

shall be punishable by a fine in an amount of up to three thousand monthly calculation indices, or correctional labour in the same amount, or community service for a period of up to eight hundred hours, or restriction of liberty for a period of up to three years, or imprisonment for the same period, with deprivation of the right to hold certain positions or engage in certain activities for a period of up to three years or without such deprivation.

The public danger of the criminal offence under consideration (Parts 1 and 3 constitute crimes, while Part 2 constitutes a criminal misdemeanour) lies in the fact that its commission disrupts the normal functioning of courts, prosecution authorities and pre-trial investigation authorities, undermines the constitutional foundations of justice and the judiciary, and damages the authority of law enforcement agencies.

The object of the offence is the public relations ensuring the normal functioning, as regulated by legislation, of the activities of courts in the administration of justice, as well as the activities of prosecutors or persons conducting pre-trial investigations.

The objective element under Part 1 of Article 407 of the Criminal Code consists of interference in any form with the activities of a court for the purpose of obstructing the administration of justice.

According to Article 77 of the Constitution of the Republic of Kazakhstan, a judge is independent when administering justice and is subject only to the Constitution of the Republic of Kazakhstan and the law. Any interference in the activities of a court in the administration of justice is inadmissible and entails liability under the law. A similar provision is established in Paragraph 3 of Article 1 of the Constitutional Law of the Republic of Kazakhstan dated 25 December 2000, “On the Judicial System and Status of Judges of the Republic of Kazakhstan”, and in the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated 14 May 1998, “On Certain Issues of the Application of Legislation on Judicial Power”.

Pursuant to Part 1 of Article 51 of the Criminal Procedure Code of the Republic of Kazakhstan, a court, being an organ of judicial power, administers justice in criminal cases.

A criminal case may be considered only by a lawful, independent, competent and impartial composition of the court.

Justice in criminal cases in the Republic of Kazakhstan is administered by the Supreme Court; regional courts and courts equated to them, the Military Court; district courts and courts equated to them; specialised interdistrict criminal courts, specialised investigative courts, specialised interdistrict investigative courts, specialised interdistrict military criminal courts, specialised interdistrict juvenile courts, and military courts of garrisons (Part 3 of Article 51 of the Criminal Procedure Code).

According to Article 12 of the Civil Procedure Code of the Republic of Kazakhstan, a judge is independent when administering justice and is subject only to the Constitution of the Republic of Kazakhstan and the law. Judges consider and resolve civil cases under conditions that exclude any outside influence on them. Any interference in the activities of judges in the administration of justice is prohibited and entails liability established by law. Judges are not accountable in respect of specific cases.

Guarantees of judicial independence are established by the Constitution of the Republic of Kazakhstan and the law.

Interference in the activities of a court means unlawful influence exerted on a person administering justice. Such a person may be a judge working in any level of the judicial system of our country (district, city, regional or Supreme Court), as well as a juror.

In accordance with Part 1 of Article 54 of the Criminal Procedure Code, a judge who, within the limits of their competence, considers a case individually, performs administrative actions in preparation for a court hearing or ensuring the execution of a court sentence or other decision, and resolves motions and complaints specified in Part 3 of Article 53 of the Criminal Procedure Code, possesses the powers of a court.

A judge is a state official vested, in accordance with the procedure established by the Constitution of the Republic of Kazakhstan and the Constitutional Law “On the Judicial System and Status of Judges of the Republic of Kazakhstan”, with the powers to administer justice, performing their duties on a permanent basis and being a bearer of judicial power (Article 23 of the Constitutional Law).

Interference implies intrusion into someone else's affairs or relationships, active involvement in them, or actions that prevent or stop something. Forms of interference may vary: requests, persuasion, advice, promises to provide services, blackmail, demands, abduction of judicial and investigative case files and material evidence, etc. At the same time, requests or demands may be accompanied by blackmail, promises of certain benefits or, conversely, the creation of unfavourable conditions in a person's private life, everyday circumstances, etc. They may be expressed orally or in writing and accompanied by hints or requests addressed to a person participating in the administration of justice. Interference in various forms may be directed either directly at a judge, prosecutor or person conducting a pre-trial investigation, or through third parties, including relatives, acquaintances, colleagues, etc.

According to Paragraph 4 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated 14 May 1998, “On Certain Issues of the Application of Legislation on Judicial Power in the Republic of Kazakhstan”, interference in the activities of a court should be understood as “any form of influence exerted on a judge for the purpose of preventing them from administering objective and impartial justice in a particular case. Such forms of interference may include, in particular, a direct instruction or indirect request by any person to adopt a decision in favour of a particular party to judicial proceedings, the deliberate creation of conditions under which a judge is compelled to adopt a particular decision, and other similar actions. Taking a case pending before a court under the control of state bodies or their officials should be regarded as interference in judicial activities for the purpose of obstructing the administration of justice”.

Pursuant to Paragraph 1 of Article 1 of the Constitutional Law of the Republic of Kazakhstan “On the Judicial System and Status of Judges of the Republic of Kazakhstan”, appeals, applications and complaints submitted by citizens and organisations that are subject to consideration in judicial proceedings may not be considered on their merits or taken under the control of any other bodies, officials or other persons.

In this regard, in Paragraph 6 of the aforementioned Regulatory Resolution, the Supreme Court of the Republic of Kazakhstan explains that courts should leave without consideration written or oral appeals from officials of state bodies containing recommendations concerning the resolution of a particular case and, where necessary, additionally raise the issue of holding such persons liable.

Influence on the work of a court in the form of recommendations concerning the consideration of criminal, civil or administrative cases, as well as in the form of instructions contained in resolutions of judicial panels when considering cases under appellate, cassation or supervisory procedures, is considered lawful. Also considered lawful, for example, are consultations and instructions given orally or in writing by an experienced judge to a junior judge undergoing an internship when the latter is considering a particular case or materials, provided that they are given for the purpose of avoiding judicial errors. Criminal liability is excluded where, upon identifying substantial violations of criminal procedure legislation that prevent the scheduling of the main court hearing, or upon identifying such violations during the main court hearing in cases involving expedited pre-trial investigations or procedural agreements, the court returns the case to the prosecutor and issues instructions for eliminating such violations (Article 323 of the Criminal Procedure Code). The same applies where a prosecutor or the head of an investigative department or inquiry department gives instructions aimed at ensuring a comprehensive, complete and objective investigation of a criminal case. Motions submitted by participants in the proceedings and the expression of their opinions during closing arguments are recognised as lawful. Such conduct may outwardly resemble interference in the activities of a court, but it is lawful because it is provided for by criminal procedure legislation.

Unlawful influence exerted on other court employees (the court session secretary, consultant or court bailiff) does not constitute the elements of this crime. Such an act, where the necessary elements are present, may be classified as a criminal offence against the established order of governance or as a criminal offence against the person.

In order to establish the presence of the elements of the crime under consideration, the interference must be unlawful, meaning that the person exerting influence on the resolution of an issue in a case had no right to do so and that, as a result of the interference, the judge, prosecutor or person conducting the pre-trial investigation is inclined or compelled to adopt a decision in the interests of the guilty person.

The composition of this crime is formal in nature. The crime is considered completed from the moment interference occurs in the activities of the persons specified in Article 407 of the Criminal Code, regardless of whether the perpetrator succeeded in achieving the intended purpose of obstructing the normal functioning of justice and the conduct of pre-trial investigations.

A decision adopted as a result of interference falls outside the scope of this criminal offence and must be assessed separately. It may constitute a crime against justice or a corruption-related or other criminal offence against the interests of public service and public administration. For example, rendering a knowingly unjust sentence, decision or other judicial act should be classified under Article 418 of the Criminal Code. Forgery of documents that do not constitute evidence, resulting from interference in the activities of a court or a prosecutor, investigator or person conducting an inquiry, must be classified under Article 369 of the Criminal Code.

The subjective element of the crime is characterised by direct intent. The perpetrator is aware of the social danger and unlawfulness of the interference they are committing, foresees it and desires it.

An essential element of the subjective side is the purpose of obstructing the administration of justice. Therefore, when applying Article 407 of the Criminal Code, courts and law enforcement authorities must establish the presence of precisely this purpose. If the interference was carried out for a different purpose, liability under Article 407 of the Criminal Code is excluded.

The motives for obstructing the administration of justice may vary: personal motives, mercenary motives, an interest in the fate of a close person, etc. The motive is irrelevant for legal classification but is taken into account by the court when imposing punishment.

The subject of the crime is a sane natural person who has reached the age of 16.

From the objective standpoint, the criminal misdemeanour provided for in Part 2 of Article 407 of the Criminal Code is expressed in interference in any form with the activities of a prosecutor or a person conducting a pre-trial investigation for the purpose of obstructing a comprehensive, complete and objective pre-trial investigation.

According to Part 1 of Article 24 of the Criminal Procedure Code, the court, prosecutor, investigator and inquiry officer are obliged to take all measures provided for by law to conduct a comprehensive, complete and objective examination of the circumstances necessary and sufficient for the proper resolution of the case.

The body conducting the criminal proceedings must verify all statements concerning innocence or a lesser degree of guilt, as well as the existence of evidence exonerating a suspect, accused or defendant, or mitigating their liability, including statements concerning the use of prohibited investigative methods in the collection and consolidation of evidence.

In criminal proceedings, a pre-trial investigation is understood as one of the stages of pre-trial proceedings intended to establish the circumstances of a criminal offence and form the evidentiary basis.

According to Subparagraph 41) of Article 7 of the Criminal Procedure Code, pre-trial proceedings mean proceedings in a case from the commencement of the pre-trial investigation until the prosecutor sends the criminal case to court for consideration on its merits or terminates the proceedings in the case, as well as the preparation of criminal case materials by a private prosecutor and the defence.

Depending on the categories of criminal offences being investigated, the legislator has established that pre-trial investigations are conducted in the form of an inquiry or preliminary investigation.

Pre-trial investigations in the form of an inquiry are conducted by a criminal prosecution authority in respect of crimes specified in Parts 2–11-1 of Article 191 of the Criminal Procedure Code (Part 2 of Article 189 of the Criminal Procedure Code).

Pre-trial investigations in the form of a preliminary investigation are conducted in respect of crimes specified in Article 187 of the Criminal Procedure Code, all criminal offences committed by minors or by persons who, due to their physical or mental disabilities, are unable to exercise their right to defence independently, as well as inquiry cases in which the person suspected of committing a crime is unknown, with the exception of cases involving criminal offences specified in Part 2 of Article 32 of the Criminal Procedure Code (Part 3 of Article 189 of the Criminal Procedure Code).

An expedited pre-trial investigation may be conducted in respect of minor and medium-gravity crimes, as well as serious crimes, provided that the collected evidence establishes the fact of the crime and the identity of the person who committed it, that such person fully admits their guilt and agrees with the amount (sum) of the damage (harm) caused, and that the suspect is notified thereof and the legal consequences of this decision are explained to them (Part 2 of Article 190 of the Criminal Procedure Code).

Pre-trial investigation in protocol form is conducted by a criminal prosecution authority in respect of criminal misdemeanours provided for in Parts 16–24 of Article 191 of the Criminal Procedure Code (Part 6 of Article 189 of the Criminal Procedure Code).

According to Subparagraph 23) of Article 7 of the Criminal Procedure Code, the bodies (officials) of criminal prosecution are the prosecutor (public prosecutor), investigator, inquiry body and inquiry officer.

Chapter 8 of the Criminal Procedure Code defines the state bodies and officials performing the functions of criminal prosecution: the prosecutor, head of the investigative department, investigator, inquiry body, head of the inquiry body and inquiry officer.

Thus, the officials whose activities may be subject to interference under Part 2 of Article 407 of the Criminal Code are the prosecutor, head of the investigative department, investigator, head of the inquiry body and inquiry officer. It should be borne in mind that criminal procedure legislation provides for “combined” procedural statuses (for example, a procedural prosecutor or head of an investigative group), each of which is undoubtedly also a person whose activities may be subject to interference under Part 2 of Article 407 of the Criminal Code.

A prosecutor is an official who, within the limits of their competence, exercises supervision over the legality of operational investigative activities, inquiry, investigation and judicial decisions, conducts criminal prosecution at all stages of criminal proceedings, and exercises powers in accordance with Article 83 of the Constitution of the Republic of Kazakhstan and the Criminal Procedure Code: the Prosecutor General of the Republic of Kazakhstan, the First Deputy and Deputy Prosecutors General of the Republic of Kazakhstan, their senior assistants and assistants, the Chief Military Prosecutor and Chief Transport Prosecutor of the Republic of Kazakhstan, prosecutors of regions, cities of republican significance and the capital and their deputies, heads of structural divisions, their deputies, senior assistants and assistants, senior prosecutors and prosecutors of departments and divisions, prosecutors of districts and cities and prosecutors equated to them, their deputies, senior prosecutors and prosecutors acting within the powers established by the Criminal Procedure Code. A prosecutor participating in the consideration of a criminal case by a court represents the interests of the state by maintaining the prosecution and is a public prosecutor (Part 1 of Article 58 of the Criminal Procedure Code).

According to Part 1 of Article 59 of the Criminal Procedure Code, the head of an investigative department is the head of an investigative division of a body conducting a pre-trial investigation and their deputies, acting within the limits of their competence.

Pursuant to Part 1 of Article 60 of the Criminal Procedure Code, an investigator is an official authorised to conduct a pre-trial investigation in a criminal case within the limits of their competence: an investigator of the internal affairs bodies, an investigator of the national security bodies, an investigator of the anti-corruption service and an investigator of the economic investigation service, as well as a prosecutor in cases provided for by the Criminal Procedure Code.

Under Part 1 of Article 62 of the Criminal Procedure Code, the powers of the head of an inquiry body during pre-trial investigations in cases involving criminal offences provided for in Article 191 of the Criminal Procedure Code, within the limits of their competence, are exercised by the heads of the Main Directorate (Department), directorate and division of the inquiry body and their deputies.

An inquiry officer is an official authorised to conduct a pre-trial investigation in a case within the limits of their competence (Part 1 of Article 63 of the Criminal Procedure Code).

The activities referred to in the disposition of Part 2 of Article 407 of the Criminal Code mean the actions provided for by criminal procedure law, commencing with the initiation of the pre-trial investigation and ending with the prosecutor's approval of the indictment and referral of the criminal case to court.

According to Part 1 of Article 179 of the Criminal Procedure Code, the commencement of a pre-trial investigation is the registration of an application or report concerning a criminal offence in the Unified Register of Pre-trial Investigations or the performance of the first urgent investigative action. The moment of completion, in accordance with Part 1 of Article 305 of the Criminal Procedure Code, is the approval of the indictment by the prosecutor and the referral of the criminal case to court.

Undoubtedly, the key figure among those listed is the investigator, since it is precisely the investigator who conducts proceedings in most criminal cases, including those investigated in the form of a preliminary investigation, and possesses a special legal status based on independence in making procedural decisions, unlike other participants in the proceedings.

The investigator independently makes all decisions during a pre-trial investigation, except in cases where the law requires obtaining the sanction of a prosecutor or court, or a court decision, and bears full responsibility for their lawful and timely execution. Unlawful interference in the activities of an investigator entails criminal liability.

An investigator has the right at any time, by issuing a resolution, to accept a case for their own proceedings and commence its investigation without waiting for the inquiry bodies to perform urgent investigative actions (Part 6 of Article 60 of the Criminal Procedure Code).

A resolution issued by an investigator in a criminal case within the limits of their powers, as well as their instructions and directions given during a pre-trial investigation in a criminal case, are subject to mandatory execution by all organisations, officials and citizens (Part 7 of Article 60 of the Criminal Procedure Code).

Influence exerted on a prosecutor, investigator, inquiry officer or other persons listed above at the stage of registering an application or report concerning a criminal offence in the Unified Register of Pre-trial Investigations, or during the performance of the first urgent investigative action, or when issuing a resolution to terminate a pre-trial investigation, constitutes interference in the conduct of a pre-trial investigation.

Interference in the activities of a prosecutor (including a procedural prosecutor) in the exercise of supervisory functions may contain the elements of the objective side of the criminal offence under consideration in cases where a prosecutorial inspection reveals facts indicating the commission of a criminal offence or other facts and events that must become the subject of judicial consideration.

Interference in the activities of a prosecutor may also include, for example, a demand not to impose detention as a preventive measure on a person suspected of committing a criminal offence, a demand not to recommend the imposition of severe punishment on a defendant during the court proceedings, refraining from filing a protest, etc.

Interference in the investigation of a criminal case may take the form of exerting pressure on a prosecutor (including a procedural prosecutor), investigator or inquiry officer when deciding issues concerning the selection of coercive measures, the adoption of final and interim procedural decisions, the classification of the criminal offence committed by the perpetrator, exemption from criminal liability, termination of a pre-trial investigation or suspension of proceedings in a case, etc.

If interference in the activities of the persons specified in Part 2 of Article 407 of the Criminal Code occurs not in connection with their conduct of a pre-trial investigation but, for example, in connection with a prosecutor's inspection of compliance with applicable legislation at an enterprise or an investigator of the internal affairs bodies participating in activities aimed at maintaining public order, the perpetrator's actions should be classified not under Part 2 of Article 407 of the Criminal Code, but under the provisions of Chapter 16 of the Criminal Code, which establish liability for criminal offences against the established order of governance.

The criminal misdemeanour under consideration is formal in nature and is deemed completed upon interference in any form with the activities of a prosecutor or a person conducting a pre-trial investigation. It is irrelevant whether the perpetrator managed to obstruct the pre-trial proceedings.

The subjective element of the criminal misdemeanour under consideration is characterised by direct intent. The perpetrator is aware of the social danger of the interference being committed and understands that it is carried out for the purpose of obstructing a comprehensive, complete and objective investigation of the case, foresees the occurrence of negative consequences and desires them.

When applying Part 2 of Article 407 of the Criminal Code, courts and law enforcement authorities must establish the presence of precisely this purpose. If the interference was carried out for a different purpose, liability under this provision of the Criminal Code is excluded.

The motives for obstructing a pre-trial investigation may vary and do not affect the legal classification. A criminal misdemeanour may be committed for personal reasons, including mercenary motives or a personal interest in the fate of a relative, etc. The motive is irrelevant for the classification of the criminal misdemeanour but is taken into account by the court when imposing punishment.

The subject of the offence is a sane natural person who has reached the age of 16.

Part 3 of Article 407 of the Criminal Code provides for liability for interference in the activities of a court, prosecutor or person conducting a pre-trial investigation by a person through the use of their official position. Such an act committed through the use of one's official position may be committed both by an official and by other employees of state bodies.

The subject of the crime provided for in Part 3 of Article 407 of the Criminal Code is most often a person on whom the judge or law enforcement officers making decisions in a criminal case are dependent. For example, a prosecutor is dependent on a higher-ranking prosecutor. Investigators and inquiry officers of law enforcement agencies are dependent both on their immediate superiors — the heads of investigative departments or inquiry departments — and on other managers.

In cases where a higher-ranking official authorised to issue instructions in a particular criminal case, abusing their official powers and being interested in the outcome of the case, issues instructions contrary to the law, their actions should also be regarded as unlawful interference in the activities of a court in the administration of justice or in the activities of a prosecutor, investigator or person conducting an inquiry in the comprehensive, complete and objective investigation of the case. The criminal conduct of such a person should be classified under Part 3 of the Article of the Criminal Code under consideration.

Where interference in the activities of a court, prosecutor's office, investigator or other competent person is accompanied by a threat to kill, cause harm to health, damage or destroy property, the acts committed should be classified cumulatively under Articles 407 and 409 of the Criminal Code.

The act provided for in Part 1 of Article 407 of the Criminal Code is classified as a crime of minor gravity.

The act provided for in Part 2 of Article 407 of the Criminal Code is classified as a criminal misdemeanour.

The act provided for in Part 3 of Article 407 of the Criminal Code is classified as a crime of medium gravity.

Commentary to 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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