Commentary on Article 430. Failure to Execute a Court Judgment, Court Decision or Other Judicial Act, or an Enforcement Document of the Criminal Code of the Republic of Kazakhstan

1. Failure to execute a judgment, court decision or other judicial act, or an enforcement document that has entered into legal force for more than six months, as well as obstruction of their execution —

shall be punishable by 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.

2. The same acts committed by a person through the use of their official position —

shall be punishable by community service for a period of up to one thousand two hundred hours, or restriction of liberty for a period of three to five 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 five years.

3. Acts provided for in Parts One or Two of this Article, in respect of which the amount to be recovered exceeds ten thousand monthly calculation indices established by the legislation of the Republic of Kazakhstan at the time of the commission of the crime, as well as obstruction of their execution —

shall be punishable by restriction of liberty for a period of five to seven 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 five years.

Note. A person who has committed a crime provided for in Part Three of this Article and repaid the entire amount of the debt before the court delivers its judgment shall not be sentenced to imprisonment.

In accordance with Paragraph 3 of Article 76 of the Constitution of the Republic of Kazakhstan, court decisions, judgments and other rulings are binding throughout the territory of the Republic of Kazakhstan.

The public danger of the act under consideration lies in the fact that it undermines the authority of the court as an independent branch of government, violates the procedure for the administration of justice and the principle of the binding nature of judicial acts, and also makes it impossible to compensate for damage and restore the violated rights and legitimate interests of citizens, institutions and organizations in whose favour such acts have been issued.

In accordance with Part 1 of Article 472 of the Criminal Procedure Code, judgments and court rulings that have entered into legal force are binding, without exception, on all state bodies, local self-government bodies, legal entities, officials and citizens, and are subject to strict execution throughout the territory of the Republic of Kazakhstan. Failure to execute a court judgment or ruling entails criminal liability.

Pursuant to Part 2 of Article 21 of the Civil Procedure Code, judicial acts that have entered into legal force, as well as orders, demands, instructions, summonses, requests and other communications of courts and judges in the administration of justice, are binding on all state bodies, local self-government bodies, legal entities, officials and citizens, and are subject to execution throughout the territory of the Republic of Kazakhstan. Failure to execute judicial acts, as well as any other manifestation of disrespect for the court, entails liability provided for by law (Part 3 of Article 21 of the Civil Procedure Code).

Part 1 of Article 884 of the Code of Administrative Offences establishes that a decision imposing an administrative penalty and an order requiring payment of a fine are binding on all state bodies, local self-government bodies, officials, individuals and their associations, and legal entities.

Similar clarifications are provided in Paragraph 1 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated December 19, 2003, “On Liability for Failure to Execute Judicial Acts”.

The object of the crime is the interests of justice and the normal functioning of bodies responsible for ensuring the execution of judicial acts in criminal, civil and administrative cases, as well as enforcement documents. An additional object comprises the property and other interests of the state, legal entities and individuals.

The subject matter of the crime is a judgment, decision or other judicial act, or an enforcement document (these concepts are analysed in detail in the commentary to Article 416 of the Criminal Code).

The list of enforcement documents, pursuant to Part 1 of Article 9 of the Law of the Republic of Kazakhstan dated April 2, 2010, “On Enforcement Proceedings and the Status of Court Bailiffs”, is provided in the commentary to Article 420 of the Criminal Code.

The objective element of the crime is characterised by failure to execute a judgment, court decision or other judicial act that has entered into legal force, or an enforcement document, for more than six months, as well as obstruction of the execution of judicial decisions.

Failure to execute a judicial act or enforcement document consists in the subject refraining from fulfilling the obligation imposed on them to comply with the requirements formulated in the judicial act, despite having a real opportunity to fulfil them. At the same time, it should be taken into account that methods of refraining from fulfilling an obligation may vary and may also be expressed through active conduct.

In accordance with Paragraph 12 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated December 19, 2003, “On Liability for Failure to Execute Judicial Acts”, failure to execute a judicial act or enforcement document should be understood as the debtor's failure to take measures to execute the judicial act, concealment of earnings and other property against which recovery may be levied, failure to provide information about their place of employment or income derived from entrepreneurial activities without establishing a legal entity, entering into transactions involving the disposal of property for the purpose of evading the fulfilment of obligations, as well as other actions involving the use of funds and property for other purposes.

The debtor's payment of insignificant monetary amounts for the purpose of evading execution of a judicial act, despite having the opportunity to fulfil the obligation in full, should be regarded as non-execution.

Liability under Article 430 of the Criminal Code arises only where failure to execute a judgment, court decision or other judicial act that has entered into legal force, or an enforcement document, for a period exceeding six months has been established.

The six-month period provided for by Article 430 of the Criminal Code shall be calculated from the date on which the judicial act enters into legal force.

Failure to execute a judicial act or enforcement document that has entered into legal force for less than six months does not entail liability under Article 430 of the Criminal Code. In such cases, liability is provided for under Article 669 of the Code of Administrative Offences.

Obstruction of the execution of a judicial act or enforcement document should be understood as any intentional actions or omissions aimed at making the execution of the judicial act impossible.

Obstruction may take the form of restricting a court bailiff's access to the inventory, valuation and seizure of property, the conduct of auctions, and the inspection of residential and other premises or storage facilities where the debtor's property may be located; an employer organisation's failure to withhold monetary funds from the debtor towards repayment of the debt under an enforcement document; opening accounts unknown to the court bailiff for the purpose of concealing income; and other actions or omissions that create obstacles to execution.

Obstruction may also take the form of bribing a court bailiff, misleading them, or using any other forms of influence on a person obliged to execute a judicial act, with the aim of preventing its execution.

The procedure and time limits for the execution of judicial acts in criminal cases are regulated by Articles 470–477 of the Criminal Procedure Code. Article 11 of the Law of the Republic of Kazakhstan “On Enforcement Proceedings and the Status of Court Bailiffs” establishes the time limits for submitting enforcement documents for execution, while Article 39 of the Law establishes the time limits for executing enforcement documents. Administrative liability under Article 669 of the Code of Administrative Offences may arise from the expiry of the time limits specified in Article 39 of the aforementioned Law.

The provision of the Article primarily concerns the non-execution of judicial acts, as well as enforcement documents issued by the courts of the Republic of Kazakhstan. In accordance with Article 501 of the Civil Procedure Code, where provided for by law or an international treaty of the Republic of Kazakhstan on the basis of reciprocity, the elements of the crime may also be present in cases of failure to execute decisions of courts of foreign states, international courts and arbitral tribunals within three years from the date on which the decision enters into legal force.

The mandatory enforcement of arbitral awards of foreign states is established by the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, June 10, 1958), as well as the Agreement on the Procedure for Resolving Disputes Related to the Exercise of Economic Activity (Kyiv, March 20, 1992).

The composition of the crime is formal in its construction. It is considered completed from the moment the six-month period for executing a judicial act expires after the act has entered into legal force. Obstruction of the execution of a judicial act that has entered into legal force is considered completed from the moment actions preventing the execution of the judicial act or enforcement document are committed.

According to Paragraph 1 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated December 19, 2003, “On Liability for Failure to Execute Judicial Acts”, the absence of a debtor's real ability to execute a judicial act in a certain part or in its entirety excludes the possibility of holding that person criminally liable.

The actual impossibility of executing a judicial act or enforcement document should be understood as the absence of property and monetary funds belonging to the debtor against which recovery may be levied; non-payment of wages by the employer; suspension of pension and benefit payments; a prolonged illness as a result of which the debtor is undergoing treatment and receives neither temporary disability benefits nor wages; compulsory treatment for alcoholism, drug addiction, substance abuse or tuberculosis pursuant to a court order; retraining in connection with obtaining another job in the future in a speciality that the debtor did not previously possess; and other circumstances due to which the debtor genuinely has no possibility of executing the judicial act within a certain period.

Release of the debtor from liability for failure to execute a judicial act or enforcement document in the circumstances specified above does not exclude their obligation to execute the judicial act or enforcement document in accordance with the law after those circumstances cease to exist, including taking into account the accumulated debt.

However, late but voluntary execution of a judicial act or enforcement document, for example, with a short delay (such as several days), where there are no serious adverse consequences resulting from such delay, may be regarded as an insignificant act that does not pose a public danger (Part 4 of Article 10 of the Criminal Code).

The commencement of the limitation period for bringing criminal charges for failure to execute a judicial act or enforcement document shall be calculated from the moment of the actual commission of acts indicating failure to execute a judgment, court decision or other judicial act that has entered into legal force for more than six months, as well as obstruction of their execution. A person may not be held liable for failure to execute a judicial act or enforcement document if the claimant has missed the statutory time limit for submitting the enforcement document for execution and that time limit has not been restored.

The subjective element of the act is characterised by guilt in the form of direct intent. The perpetrator is aware that they are failing to execute a judgment, court decision or other judicial act that has entered into legal force, or an enforcement document, despite being obliged to do so and having a real opportunity to execute it, or that they are obstructing its execution; they foresee the occurrence of adverse consequences and desire them.

The motives for the crime may vary (greed, personal interest, incorrectly understood interests of the service, etc.). They do not affect the legal classification of the crime but are taken into account by the court when imposing a sentence.

The subject of the crime under Part 1 of Article 430 of the Criminal Code may be a physically competent individual who has reached the age of sixteen.

In accordance with Paragraph 11 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated December 19, 2003, “On Liability for Failure to Execute Judicial Acts”, only those persons who, pursuant to a judgment, decision or other judicial act, are obliged to perform certain actions in the course of enforcement proceedings may be held criminally liable for failure to execute a judicial act, as well as for obstructing its execution.

With regard to other persons who commit actions obstructing the execution of a judicial act, criminal prosecution may be carried out under the relevant articles of the Criminal Code providing for liability for encroachment on the life and health of a court bailiff, defamation, threats to kill or cause bodily harm, and other offences.

Thus, the clarification provided by the Supreme Court of the Republic of Kazakhstan defines the category of persons who constitute the subject of the crime under consideration. These primarily include convicted persons, defendants in civil cases, and persons against whom administrative penalties have been imposed by a court.

Part 2 of Article 430 of the Criminal Code provides for the use of one's official position by a person as an aggravating qualifying feature of the same acts. The use of official position presupposes the exercise of the functions, rights and duties vested in a person by virtue of the position they hold.

Failure by the perpetrator to execute the aforementioned procedural acts generally constitutes inaction on the part of an official. For example, an official fails to comply with a court decision ordering the dismissal of the guilty person from the position they hold, or fails to terminate the activities of a person prohibited by a judicial authority from engaging in such activities; does not allow an employee reinstated by a court decision to return to work; leaves without further action an enforcement writ for the recovery of monetary amounts from their subordinate, the return of property, the payment of a fine, etc.

A state court bailiff may be recognised as a subject of the crime under consideration pursuant to Part 2 of Article 430 of the Criminal Code, since they are an official in public service who performs the functions assigned to them by law of taking measures aimed at the compulsory execution of enforcement documents.

Court bailiffs who, contrary to the interests of their service, unlawfully assist debtors in evading the execution of judicial acts and enforcement documents that have entered into legal force may be held criminally liable for complicity in the commission of the crime under consideration by a group of persons.

Part 3 of Article 430 of the Criminal Code establishes liability for acts provided for in Parts 1 or 2 of this Article where the amount to be recovered exceeds ten thousand monthly calculation indices established by the legislation of the Republic of Kazakhstan at the time of the commission of the crime, as well as for obstruction of their execution.

Liability for failure to execute a judgment, court decision or other judicial act that has entered into legal force, or an enforcement document, as well as for obstruction of their execution, is provided for both in the general provision of the law (Article 430 of the Criminal Code) and in special provisions (Articles 139, 152, 346 and 431 of the Criminal Code).

When considering a case, the court must comply with the provisions of the relevant articles of the Criminal Code, taking into account the competition between general and special legal provisions.

With regard to persons who commit actions obstructing the execution of a judicial act accompanied by encroachment on the life and health of a court bailiff, threats to kill or cause bodily harm, and other socially dangerous infringements, the articles of the Criminal Code establishing liability for such acts may additionally be applied.

According to the Note to the Article under consideration, a person who has committed a crime provided for in Part 3 of Article 430 of the Criminal Code and repaid the entire amount of the debt before the court delivers its judgment shall not be sentenced to imprisonment. In this case, the guilty person is given the opportunity to repay the entire amount of the debt (not less than ten thousand monthly calculation indices) before the court delivers its judgment (at any stage of the criminal proceedings or court proceedings, except for the stage specified above). In lieu of imprisonment, the person may be sentenced only to restriction of liberty for a period of five to seven years, with deprivation of the right to hold certain positions or engage in certain activities for a period of up to five years.

The acts provided for in Parts 1 and 2 of Article 430 of the Criminal Code are classified as crimes of medium gravity.

The act provided for in Part 3 of Article 430 of the Criminal Code is classified as a serious crime.

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 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.

Constitution Law Code Regulatory Act Decree Order Decision Resolution Advocate Almaty Lawyer Legal Services Legal Consultation Civil Criminal Administrative Cases and Disputes Defence Arbitration Legal Company of Kazakhstan Law Office Court Cases Declaration Decree Order Resolution Decision Report Conclusion Application Conclusion Convention Contract Methodology Rules Note Regulations Programme Charter Norms Article Commentary Resolution Regulation Protocol Draft Programme Rules Addresses