Commentary on Article 436. Obstructing a Citizen from Performing the Duties of a Juror under the Criminal Code of the Republic of Kazakhstan
1. Obstructing a citizen from performing the duties of a juror by an official —
shall be punishable by a fine in an amount of up to eighty monthly calculation indices, or correctional labour in the same amount, or community service for a period of up to eighty hours, or arrest for a period of up to twenty days.
The public danger of the criminal misdemeanor lies in the violation of the provision enshrined in paragraph 2 of Article 75 of the Constitution of the Republic of Kazakhstan, according to which, in cases provided for by law, criminal proceedings are conducted with the participation of jurors.
Pursuant to paragraph 1 of Article 1 of the Constitutional Law of the Republic of Kazakhstan dated December 25, 2000, “On the Judicial System and Status of Judges of the Republic of Kazakhstan,” judicial power in the Republic of Kazakhstan belongs exclusively to courts, represented by permanent judges, as well as jurors engaged in criminal proceedings in the cases and in accordance with the procedure provided for by law.
Under paragraph 2 of Article 25 of the aforementioned Constitutional Law, no one has the right to interfere with the administration of justice or exert any influence whatsoever on a judge or jurors. Such actions are punishable by law.
In accordance with Article 18 of the Law of the Republic of Kazakhstan dated January 16, 2006, “On Jurors,” persons who obstruct a juror from performing their duties shall bear liability established by the laws of the Republic of Kazakhstan.
The procedure for applying the provisions of legislation governing proceedings in cases involving jurors is explained in the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated August 23, 2012, “On the Practice of Application by Courts of Legislation Regulating Criminal Proceedings Involving Jurors.”
The object of the criminal misdemeanor under consideration is the public relations ensuring citizens' participation in the administration of justice.
In accordance with subparagraph 1) of Article 1 of the Law of the Republic of Kazakhstan dated January 16, 2006, “On Jurors,” a juror is a citizen of the Republic of Kazakhstan summoned to participate in the consideration of a criminal case by a court in accordance with the procedure established by law and who has taken an oath.
The procedure for criminal proceedings involving jurors is regulated by Section 14 of the Criminal Procedure Code.
The objective element is characterized by an official obstructing a citizen from performing the duties of a juror.
Obstruction means opposition and the creation of all kinds of obstacles to the activities of a juror. Obstructing the activities of a juror primarily involves exerting influence on the juror with the intention of preventing them from participating in court proceedings as a juror and exercising the lawful powers granted to them independently of anyone.
According to paragraph 2 of Article 17 of the Law of the Republic of Kazakhstan “On Jurors,” the independence of a juror in performing their duties in court is ensured by: 1) the procedure for administering justice established by law; 2) a prohibition, backed by the threat of liability, against any interference whatsoever in the activities of a juror relating to participation in the administration of justice.
A juror, their family members and their property are under the protection of the State. The authority conducting the criminal proceedings is obliged to take the necessary measures to ensure the safety of the juror and their family members and the preservation of their property if a juror performing their duties in court submits a corresponding application, as well as in cases where other evidence of a threat to the safety of the aforementioned persons or the preservation of their property is discovered (paragraph 2 of Article 17 of the aforementioned Law).
By its legal structure, the elements of the criminal misdemeanor are formal. The criminal misdemeanor shall be considered completed from the moment the obstruction begins.
The subjective element of the criminal misdemeanor is characterized by direct intent. The offender is aware that they are creating obstacles to a citizen performing the duties of a juror, foresees the occurrence of negative consequences and desires to do so.
The motive and purpose of the criminal misdemeanor do not affect its legal classification.
The subject of the crime is special. It is an official. The definition of the concept of an official is contained in subparagraph 26) of Article 3 of the Criminal Code.
The act provided for in Article 436 of the Criminal Code is classified as a criminal misdemeanor.
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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