Commentary on Article 435. Obstruction of the Lawful Activities of Advocates and Other Persons in Protecting the Rights, Freedoms and Legitimate Interests of Individuals and Citizens, as well as in Providing Legal Assistance to Individuals and Legal Entities of the Criminal Code of the Republic of Kazakhstan

Home / Codes / Commentary on Article 435. Obstruction of the Lawful Activities of Advocates and Other Persons in Protecting the Rights, Freedoms and Legitimate Interests of Individuals and Citizens, as well as in Providing Legal Assistance to Individuals and Legal Entities of the Criminal Code of the Republic of Kazakhstan

Commentary on Article 435. Obstruction of the Lawful Activities of Advocates and Other Persons in Protecting the Rights, Freedoms and Legitimate Interests of Individuals and Citizens, as well as in Providing Legal Assistance to Individuals and Legal Entities of the Criminal Code of the Republic of Kazakhstan

1. Obstruction of the lawful activities of advocates and other persons in protecting the rights, freedoms and legitimate interests of individuals and citizens in criminal proceedings, as well as in providing legal assistance to individuals and legal entities, or other interference with the autonomy and independence of such activities, where these acts cause substantial harm to the rights, freedoms or legitimate interests of individuals and citizens, the rights or legitimate interests of legal entities, or the legally protected interests of society or the State, —

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 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 acts provided for in paragraph 1 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 corrective labour in the same amount, or community service for a period of up to one thousand hours, or restriction of liberty for a period of up to five years, or imprisonment for the same period.

6. In accordance with Part 1 of Article 66 of the Criminal Procedure Code, a defence counsel is a person who, in accordance with the procedure established by law, protects the rights and interests of a witness entitled to the right to defence, a suspect, an accused person, a defendant, a convicted person or an acquitted person, and provides them with legal assistance during criminal proceedings.

7. An advocate participates as defence counsel. Where an advocate participates in criminal proceedings as defence counsel, one of the following persons may also participate in the defence alongside the advocate, upon the written application of the witness entitled to the right to defence, suspect, accused person, defendant, convicted person or acquitted person: their spouse or close relative, guardian, trustee, or a representative of an organisation under whose care or maintenance the person being defended is placed. Foreign advocates are admitted to participate in a case as defence counsel if this is provided for by an international treaty of the Republic of Kazakhstan with the relevant State on a reciprocal basis, in accordance with the procedure determined by legislation (Part 2 of Article 66 of the Criminal Procedure Code).

8. Pursuant to Article 20 of the Law of the Republic of Kazakhstan “On Advocacy and Legal Assistance”, legal assistance, within the limits of their competence, is provided by: 1) state bodies; 2) advocates, notaries, private bailiffs and legal consultants; 3) individuals providing legal assistance who are not members of non-profit organisations of persons providing legal assistance based on mandatory membership in chambers of legal consultants.

9. Obstruction means opposition to, or the creation of various obstacles to, the activities of an advocate and other persons carrying out defence in criminal proceedings, as well as persons providing other legal assistance in criminal cases.

10. Other interference with autonomy and independence may take place through various forms of interference in the activities of advocates and other persons providing legal assistance to individuals and legal entities, or through the infringement of the rights of defence counsel provided for by the Criminal Procedure Code.

11. In order to establish the existence of this offence, the obstruction must be directed against the lawful activities of advocates and other persons in protecting the rights of individuals and citizens exclusively within the framework of criminal proceedings. Obstruction of the unlawful activities of such persons is not recognised as a criminal act. Likewise, obstruction of the lawful activities of such persons in civil proceedings, proceedings concerning administrative offences, labour, family, housing and other disputes does not constitute this offence.

12. By its legal structure, the offence under consideration is classified as an offence with a material composition. The offence is considered completed from the moment substantial harm is caused to the rights, freedoms or legitimate interests of individuals and citizens, the rights or legitimate interests of legal entities, or the legally protected interests of society or the State.

13. In accordance with Subparagraph 14) of Article 3 of the Criminal Code, substantial harm, for the purposes of the Article under consideration, should be understood as a violation of the constitutional rights and freedoms of individuals and citizens, the rights and legitimate interests of organisations, and the legally protected interests of society and the State; the infliction of significant damage; the emergence of a difficult life situation for the victim; disruption of the normal operation of organisations or state bodies, as well as the unlawful prosecution of a person, unlawful conviction, issuance of an unjust judicial ruling in a criminal case, and other consequences indicating the substantial nature of the harm caused.

14. The subjective element of the offence is characterised by direct intent. The perpetrator is aware that they are obstructing the lawful activities of advocates and other persons in protecting the rights, freedoms and legitimate interests of individuals and citizens in criminal proceedings, as well as in providing legal assistance to individuals and legal entities, or otherwise interfering with the autonomy and independence of such activities; foresees the occurrence of substantial harm to the rights, freedoms and legitimate interests of individuals and legal entities, society or the State; and desires to commit such obstruction.

15. The subject of the offence provided for in Part 1 of Article 435 of the Criminal Code is general, that is, a sane individual who has reached the age of 16.

16. Part 2 of Article 435 of the Criminal Code establishes criminal liability for acts provided for in Part 1 of this Article when committed by a person through the use of their official position.

17. The use of official position presupposes the exercise of the functions, rights and duties vested in a person in connection with the position held by them in state bodies or local self-government bodies.

18. The acts provided for in Parts 1 and 2 of Article 435 of the Criminal Code are classified as offences of medium gravity.

19. Note: In the original text, the sentence in the second paragraph of Article 435 of the Criminal Code is cut off at the words “or imprisonment for the same”. This passage has been preserved without completing the text. The obvious typographical error “нрав” has also been corrected to “прав” in the definition of defence counsel.

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23. 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 reforming 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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25. Constitution Law Code Regulatory Act Decree Order Decision Resolution Advocate Almaty Lawyer Legal service Legal consultation Civil Criminal Administrative cases and disputes Defence Arbitration Legal company in Kazakhstan Law office Court cases Declaration Decree Order Resolution Decision Report Conclusion Application Conclusion Convention Contract Memorandum Methodology Regulations Note Rules Programme Charter Statute Charter Article Commentary Resolution Regulation Protocol Draft Programme Rules Addresses

The original text repeats the commentary on Article 435 in full. The repeated version is reproduced below in English, preserving the repetition.

Commentary on Article 435. Obstruction of the Lawful Activities of Advocates and Other Persons in Protecting the Rights, Freedoms and Legitimate Interests of Individuals and Citizens, as well as in Providing Legal Assistance to Individuals and Legal Entities of the Criminal Code of the Republic of Kazakhstan

2. The acts provided for in paragraph 1 of this Article, committed by a person through the use of their official position, —

In accordance with Part 1 of Article 66 of the Criminal Procedure Code, a defence counsel is a person who, in accordance with the procedure established by law, protects the rights and interests of a witness entitled to the right to defence, a suspect, an accused person, a defendant, a convicted person or an acquitted person, and provides them with legal assistance during criminal proceedings.

An advocate participates as defence counsel. Where an advocate participates in criminal proceedings as defence counsel, one of the following persons may also participate in the defence alongside the advocate, upon the written application of the witness entitled to the right to defence, suspect, accused person, defendant, convicted person or acquitted person: their spouse or close relative, guardian, trustee, or a representative of an organisation under whose care or maintenance the person being defended is placed. Foreign advocates are admitted to participate in a case as defence counsel if this is provided for by an international treaty of the Republic of Kazakhstan with the relevant State on a reciprocal basis, in accordance with the procedure determined by legislation (Part 2 of Article 66 of the Criminal Procedure Code).

Pursuant to Article 20 of the Law of the Republic of Kazakhstan “On Advocacy and Legal Assistance”, legal assistance, within the limits of their competence, is provided by: 1) state bodies; 2) advocates, notaries, private bailiffs and legal consultants; 3) individuals providing legal assistance who are not members of non-profit organisations of persons providing legal assistance based on mandatory membership in chambers of legal consultants.

Obstruction means opposition to, or the creation of various obstacles to, the activities of an advocate and other persons carrying out defence in criminal proceedings, as well as persons providing other legal assistance in criminal cases.

Other interference with autonomy and independence may take place through various forms of interference in the activities of advocates and other persons providing legal assistance to individuals and legal entities, or through the infringement of the rights of defence counsel provided for by the Criminal Procedure Code.

In order to establish the existence of this offence, the obstruction must be directed against the lawful activities of advocates and other persons in protecting the rights of individuals and citizens exclusively within the framework of criminal proceedings. Obstruction of the unlawful activities of such persons is not recognised as a criminal act. Likewise, obstruction of the lawful activities of such persons in civil proceedings, proceedings concerning administrative offences, labour, family, housing and other disputes does not constitute this offence.

By its legal structure, the offence under consideration is classified as an offence with a material composition. The offence is considered completed from the moment substantial harm is caused to the rights, freedoms or legitimate interests of individuals and citizens, the rights or legitimate interests of legal entities, or the legally protected interests of society or the State.

In accordance with Subparagraph 14) of Article 3 of the Criminal Code, substantial harm, for the purposes of the Article under consideration, should be understood as a violation of the constitutional rights and freedoms of individuals and citizens, the rights and legitimate interests of organisations, and the legally protected interests of society and the State; the infliction of significant damage; the emergence of a difficult life situation for the victim; disruption of the normal operation of organisations or state bodies, as well as the unlawful prosecution of a person, unlawful conviction, issuance of an unjust judicial ruling in a criminal case, and other consequences indicating the substantial nature of the harm caused.

The subjective element of the offence is characterised by direct intent. The perpetrator is aware that they are obstructing the lawful activities of advocates and other persons in protecting the rights, freedoms and legitimate interests of individuals and citizens in criminal proceedings, as well as in providing legal assistance to individuals and legal entities, or otherwise interfering with the autonomy and independence of such activities; foresees the occurrence of substantial harm to the rights, freedoms and legitimate interests of individuals and legal entities, society or the State; and desires to commit such obstruction.

The subject of the offence provided for in Part 1 of Article 435 of the Criminal Code is general, that is, a sane individual who has reached the age of 16.

Part 2 of Article 435 of the Criminal Code establishes criminal liability for acts provided for in Part 1 of this Article when committed by a person through the use of their official position.

The use of official position presupposes the exercise of the functions, rights and duties vested in a person in connection with the position held by them in state bodies or local self-government bodies.

The acts provided for in Parts 1 and 2 of Article 435 of the Criminal Code are classified as offences of medium gravity.

Note: In the original text, the sentence in the second paragraph of Article 435 of the Criminal Code is cut off at the words “or imprisonment for the same”. This passage has been preserved without completing the text. The obvious typographical error “нрав” has also been corrected to “прав” in the definition of defence counsel.

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 reforming 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 service Legal consultation Civil Criminal Administrative cases and disputes Defence Arbitration Legal company in Kazakhstan Law office Court cases Declaration Decree Order Resolution Decision Report Conclusion Application Conclusion Convention Contract Memorandum Methodology Regulations Note Rules Programme Charter Statute Charter Article Commentary Resolution Regulation Protocol Draft Programme Rules Addresses

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