Commentary on Article 451. Abuse of Authority of the Criminal Code of the Republic of Kazakhstan

1. Abuse of authority or official powers, that is, the commission by a superior or an official of actions that clearly exceed the limits of their rights and powers, resulting 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 in an amount of up to five thousand monthly calculation indices, or corrective labor in the same amount, or restriction of liberty for a term of up to five years, or deprivation of liberty for the same term.

2. The same act, if it entails grave consequences or is committed:

1) with the use of weapons or special means;

2) for the purpose of obtaining benefits and advantages for oneself or other persons or organizations, or causing harm to other persons or organizations, —

shall be punishable by deprivation of liberty for a term of five to seven years and, in the cases provided for in paragraph 2), with confiscation of property and lifelong deprivation of the right to hold certain positions or engage in certain activities.

3. The acts provided for in Parts One or Two of this Article, committed in a combat situation, —

shall be punishable by deprivation of liberty for a term of seven to fifteen years, with confiscation of property and lifelong deprivation of the right to hold certain positions or engage in certain activities.

4. The acts provided for in Parts One or Two of this Article, committed during wartime, —

shall be punishable by deprivation of liberty for a term of ten to twenty years or life imprisonment, with confiscation of property and lifelong deprivation of the right to hold certain positions or engage in certain activities, or without such deprivation.

The public danger of abuse of authority lies in the fact that it disrupts the normal functioning of the military command and control apparatus, damages the interests of maintaining the constant combat readiness of troops, and causes material harm to the state.

Article 451 of the Criminal Code provides for criminal liability for abuse of military authority or official powers; therefore, its legal analysis must be based on the provisions of Article 362 of the Criminal Code, "Abuse of Authority or Official Powers."

The object of this crime is the normal functioning of military command and control bodies and the established procedure for the exercise of official functions by military commanders and all military officials in the Armed Forces, which serves the interests of military service and the maintenance of the constant combat readiness of troops.

Additional objects may include legally protected rights and freedoms, as well as the interests of society and the state.

The objective element consists in the abuse of authority or official powers, that is, the commission by a superior or an official of actions that clearly exceed the limits of their rights and powers and result in a substantial violation of the rights and legitimate interests of military personnel (citizens) or organizations, or of interests of society or the state protected by law.

Unlike abuse of authority through misuse of powers, exceeding authority occurs when a superior or another official intentionally commits actions that clearly exceed the limits of the rights and powers granted to them by laws, military regulations and orders.

Under conditions of military service, abuse of authority in most cases manifests itself in the unlawful use of violence by superiors against their subordinates.

The elements of abuse of authority encompass such intentional actions by a superior that no official or body is entitled to perform under any circumstances. Such actions are in all cases recognized as unlawful (the use of violence and other non-statutory methods of coercion against subordinates, the unlawful transfer of military equipment and property for the use of unauthorized persons, and similar acts).

When determining whether a person is guilty of abuse of authority, it is necessary to establish the scope of their competence, since the rights and powers of military officials are clearly defined by laws, military regulations, provisions and command orders.

At the same time, it should be borne in mind that the use of physical violence by an official may be classified as abuse of authority if such actions are connected with the performance of their official duties and constitute an excess of the powers vested in them by virtue of their service in relation to the victim.

If abuse of authority or official powers committed by a superior or an official is accompanied by the seizure of the victim's personal belongings and items, their actions shall be classified under the cumulative application of Article 451 and the article providing for liability for crimes against property.

If violence or the threat of its use is accompanied by the seizure of items or uniform issued to a military servicemember for the period of military service, such actions, in the absence of intent to steal, are covered by the disposition of Article 451 of the Criminal Code.

Where minor or moderate bodily harm is caused, additional classification under Article 107 of the Criminal Code is not required.

In cases where an act containing the elements of abuse of authority or official powers is committed by a superior or an official to eliminate a danger directly threatening an individual, the legally protected interests of society or the state, and such danger could not have been eliminated by other means, the act cannot be recognized as a crime, provided that the limits of extreme necessity have not been exceeded (Article 34 of the Criminal Code).

Acts of an official involving the use of official powers that result in a substantial violation of the rights and legitimate interests of citizens or organizations, or of interests protected by criminal law, cannot be recognized as criminal if they were committed in execution of an order or directive that was binding upon that official (Article 38 of the Criminal Code).

If an official exceeds their authority or official powers in execution of an order or directive that they know to be unlawful, they shall be held liable on general grounds. The actions of the official who issued such an order or directive should, where grounds exist, be regarded as incitement to commit a crime or organization of that crime and classified under Article 451 of the Criminal Code, with reference to Parts 3 or 4 of Article 28 of the Criminal Code.

An official who issues an order or directive that is knowingly unlawful, to a subordinate who does not realize that the order or directive is unlawful and carries it out, shall be held liable as the perpetrator of the crime.

By its legal structure, the corpus delicti is material. Abuse of authority shall be deemed completed from the moment of the substantial violation of the rights and legitimate interests of citizens or organizations, or of interests of society or the state protected by law.

The concept of substantial harm is contained in Subparagraph 14) of Article 3 of the Criminal Code. Abuse of official powers may take the following forms:

actions that fall within the powers of another (higher-ranking) official;

actions that may be performed only under special circumstances specified in a law or subordinate regulatory legal act;

actions performed individually by an official, although such actions fall within the exclusive competence of a collegial body;

actions that no one is entitled to perform under any circumstances.

From the subjective perspective, the crime in question is committed with direct intent. The person is aware of the public danger of exceeding authority, foresees the possibility or inevitability of socially dangerous consequences in the form of causing substantial harm to the rights and legitimate interests of an organization, and desires their occurrence.

Motives and purposes do not affect the legal classification of the act but are taken into account by the court when imposing punishment.

The subject of the crime is a superior or an official, the definitions of which are provided in the analysis of Article 450 of the Criminal Code.

Part Two of this Article establishes the following qualifying circumstances for abuse of authority: abuse of authority resulting in grave consequences, or committed: 1) with the use of weapons or special means; 2) for the purpose of obtaining benefits and advantages for oneself or other persons or organizations, or causing harm to other persons or organizations, which, pursuant to Subparagraph 29) of Article 3 of the Criminal Code, falls within the characteristics of corruption-related crimes.

Grave consequences provided for in Part Two of Article 451 of the Criminal Code may include: the disruption of the performance of important tasks, the creation of a threat to state security, disasters and accidents, human casualties, destruction or damage to military equipment, substantial material damage, harm to people's health, and the like.

Grave consequences should also include the intentional infliction of grievous bodily harm on a victim, resulting in the victim's death through negligence, as well as driving a person to suicide.

If the perpetrator's actions were accompanied by murder, they shall also be subject to additional classification under Article 99 of the Criminal Code.

The concepts of weapons and special means are defined in the commentary to Part Two of Article 438 of the Criminal Code.

The use by a superior or an official of a weapon for its intended purpose against a subordinate shall be recognized as abuse of authority or official powers where the superior (official) acts in violation of the requirements of Paragraph 19 of the Disciplinary Regulations of the Armed Forces.

The actions of a patrol commander who uses a weapon when detaining a military servicemember in violation of the requirements of Paragraph 103 of the Regulations on Garrison and Guard Services shall be classified as abuse of authority or official powers.

The actions of a guard commander or a patrol unit member, as well as other officials performing special duties, who use their official position to unlawfully use weapons themselves or order their subordinates to use weapons in violation of statutory requirements, should be regarded as abuse of authority.

An essential element of the subjective aspect of the act provided for in Subparagraph 2) of Part Two of Article 451 of the Criminal Code is the purpose of obtaining benefits and advantages for oneself or other persons or organizations, or causing harm to other persons or organizations. The definitions of these concepts are provided in the commentary to Article 450 of the Criminal Code.

Part Three of Article 451 of the Criminal Code establishes liability for acts provided for in Parts One or Two of this Article when committed in a combat situation, while Part Four establishes liability for such acts when committed during wartime. The definitions of these concepts are provided in the commentary to Parts Three and Four of Article 437 of the Criminal Code, respectively.

The act provided for in Part One of Article 451 of the Criminal Code is classified as a crime of medium gravity.

The act provided for in Part Two of Article 451 of the Criminal Code is classified as a serious crime.

The acts provided for in Parts Three and Four of Article 451 of the Criminal Code are classified as especially serious crimes.

Commentary of 2021 to 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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