Commentary on Article 50. Deprivation of the Right to Hold Certain Positions or Engage in Certain Activities of the Criminal Code of the Republic of Kazakhstan
Deprivation of the right to hold certain positions or engage in certain activities consists of prohibiting a person from holding certain positions in the civil service, local self-government bodies, financial organizations, or engaging in certain professional or other activities.
Deprivation of the right to hold certain positions or engage in certain activities shall be imposed for a period of one to ten years.
For the commission of crimes in the sphere of economic activity and against the interests of service in financial organizations, committed by a senior employee of a financial organization, banking and/or insurance holding company, a major participant (major shareholder) who is an individual, the head, a member of the management body, the head or a member of the executive body, or the chief accountant of a major participant (major shareholder) that is a legal entity of a financial organization, as provided for in Part Two of Article 238, Part Two of Article 239, and Part Two of Article 250 of this Code, including crimes committed by persons temporarily or under special authorization performing the functions of the management body or executive body of a financial organization, as provided for in Part Two of Article 239 of this Code, deprivation of the right to hold a certain position shall be imposed for a period of five years up to the establishment of a lifetime prohibition on holding the position of a senior employee of a financial organization, banking and/or insurance holding company and being a major participant (major shareholder) of a financial organization.
For the commission of crimes against the sexual inviolability of minors, as well as crimes provided for in Parts Two, Three, Four and Five of Article 132 and Parts Two and Three of Article 133 of this Code, deprivation of the right to hold certain positions or engage in certain activities shall be mandatory and shall consist of a lifetime prohibition on holding teaching positions and positions involving work with minors.
For the commission of corruption-related crimes, deprivation of the right to hold certain positions or engage in certain activities shall be mandatory and shall consist of a lifetime prohibition on holding positions in the civil service, serving as a judge, holding positions in local self-government bodies, the National Bank of the Republic of Kazakhstan and its departments, the authorized body for the regulation, control and supervision of the financial market and financial organizations, state organizations and entities of the quasi-public sector.
For the commission of transport-related crimes provided for in Part Four of Article 345-1 and Article 346 of this Code, deprivation of the right to engage in certain activities shall consist of a lifetime prohibition on the right to drive a motor vehicle.
Deprivation of the right to hold certain positions or engage in certain activities may also be imposed in cases where it is not provided for in the relevant article of the Special Part of this Code as an additional punishment for the corresponding criminal offense, if, taking into account the nature and degree of public danger of the act committed and the personality of the offender, the court finds it impossible to preserve the offender's right to hold certain positions or engage in certain activities.
Where this punishment is imposed as an additional punishment to imprisonment or arrest, it shall extend throughout the entire period of serving the principal punishment; however, its term shall be calculated from the moment the imprisonment or arrest has been served. Where deprivation of the right to hold certain positions or engage in certain activities is imposed as an additional type of punishment to other principal types of punishment, as well as in cases of deferment of the execution of punishment or conditional conviction, its term shall be calculated from the moment the judgment enters into legal force.
Deprivation of the right to hold certain positions or engage in certain activities is an additional type of punishment imposed alongside the principal punishment for the commission of criminal offenses.
The essence of this type of punishment consists in depriving the convicted person, for a period specified in the court judgment, of the powers arising from their official position, job-related authority, professional or other activities, through the use of which the person committed a criminal offense or which the person could use in the future to commit a criminal offense.
Paragraph 22 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan “On Certain Issues of Imposing Criminal Punishment” draws attention to the fact that: “In accordance with Article 50 of the Criminal Code, in every case where a person commits a crime related to the performance of official duties or engagement in a particular activity, the court is obliged, taking into account the nature of the crime committed, to consider the issue of depriving the defendant of the right to hold certain positions or engage in certain activities. The operative part of the judgment must specifically identify the positions or type of activity concerned. In particular, it is inadmissible to deprive a convicted person of the right to work in a particular sector or in certain institutions or organizations without specifying the range of positions that the person is prohibited from holding. The fact that, by the time the judgment is delivered, the defendant no longer holds the position or engages in the activity connected with the commission of the crime shall not constitute an obstacle to the imposition of this additional punishment. Based on the provisions of Article 50 of the Criminal Code, the imposition of deprivation of the right to hold certain positions or engage in certain activities simultaneously for one and the same crime is not permitted.
When imposing this type of additional punishment, the court must take into account that its imposition for life is предусмотрено only for certain categories of crimes expressly listed in Part Two of Article 50 of the Criminal Code. Deprivation of the right to hold certain positions or engage in certain activities for life shall not be imposed for other criminal offenses that are not included in this list, even if this type of additional punishment is provided for as mandatory in the sanction of the relevant article of the Criminal Code. In such cases, the court must proceed from the general grounds and conditions for imposing this type of additional punishment, according to which it is imposed for a period of one to ten years.
If, in respect of two or more criminal offenses forming an aggregate, an additional punishment in the form of deprivation of the right to hold certain positions or engage in certain activities is imposed for a specified period alongside the principal punishment, the final term or amount thereof, in the event of partial or full aggregation of punishments, may not exceed the maximum term or amount for this type of punishment provided for in the General Part of the Criminal Code, that is, ten years.
Deprivation of the right to drive motor vehicles may be imposed by the court as an additional punishment in accordance with the sanction of the criminal law, regardless of whether the person had such a right or had been deprived of it by way of an administrative penalty.”
When imposing punishment in the form of deprivation of the right to hold certain positions or engage in certain activities, courts should take into account the specific provisions of Part 2 of Article 50 of the Criminal Code concerning persons who have committed crimes in the sphere of economic activity and against the interests of service in financial organizations, crimes against the sexual inviolability of minors, corruption-related crimes and transport-related crimes.
If deprivation of the right to hold certain positions or engage in certain activities is not provided for in the sanction of the relevant article of the Special Part of the Criminal Code, the court, taking into account the nature and degree of public danger of the act committed and the personality of the offender, must consider the issue of imposing such an additional punishment on the basis of the rules set out in Part 3 of Article 50 of the Criminal Code.
For a corruption-related offense committed after January 10, 2020, pursuant to the third paragraph of Clause 22-1 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan “On Certain Issues of Imposing Criminal Punishment,” an additional punishment in the form of lifetime deprivation of the right to hold positions in the civil service, serve as a judge, hold positions in local self-government bodies, the National Bank of the Republic of Kazakhstan and its departments, the authorized body for the regulation, control and supervision of the financial market and financial organizations, state organizations and entities of the quasi-public sector shall be imposed.
There is no legislative definition of the concept of “use of official position.” In this regard, it is necessary to refer to the explanations contained in the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated July 18, 1997, “On the Practice of Applying Legislation on Criminal Liability for Smuggling.” In accordance with paragraph 9 of this regulatory legal act, “...an official who has committed smuggling using their official position shall be understood as a person who, by virtue of their official duties, is required to carry out customs or border control, perform the relevant actions involving the inspection of goods or other valuables and items transported across the customs border of the Republic of Kazakhstan, and authorize the crossing of the border. Smuggling committed by such officials through the use of their official position does not require additional classification under articles of criminal law concerning official criminal offenses. Other officials who commit smuggling using their official position shall be held liable on general grounds, that is, under the aggregate of criminal offenses provided for by the applicable provision of criminal law concerning official criminal offenses and the relevant part of the article of the Criminal Code on smuggling, without reference to this qualifying element.”
Thus, the use of official position implies the exercise of those functions, rights and duties with which a person is vested by virtue of the position held within a state body or local self-government bodies.
According to subparagraph 9) of Article 1 of the Law of the Republic of Kazakhstan “On Civil Service,” official powers mean the rights and duties provided for by a specific public position, corresponding to the goals and objectives assigned to the state bodies in which civil servants perform their activities.
A specific feature of this type of punishment is that the grounds for its imposition are determined both by the nature of the act committed and by the fact that the person acts as a special subject.
Deprivation of the right to hold a certain position applies only to positions provided for in the civil service and local self-government bodies and does not extend to holding positions in non-governmental organizations and institutions. The implementation of this punishment prevents the convicted person from committing new criminal offenses through the use of a particular position.
Subparagraph 6) of Article 1 of the Law of the Republic of Kazakhstan “On Civil Service” defines the civil service of the Republic of Kazakhstan as the activities of civil servants in state bodies involving the performance of official powers aimed at implementing the tasks and functions of state authority.
According to subparagraph 12) of Article 1 of the above-mentioned Law, a civil servant is a citizen of the Republic of Kazakhstan who, in accordance with the procedure established by the legislation of the Republic of Kazakhstan, holds a public position in a state body remunerated from the republican or local budget or from the funds of the National Bank of the Republic of Kazakhstan and exercises official powers for the purpose of implementing the tasks and functions of the state.
According to subparagraph 10) of Article 1 of the Law of the Republic of Kazakhstan dated January 23, 2001, “On Local Government and Self-Government in the Republic of Kazakhstan,” local self-government bodies are bodies entrusted, in accordance with the Law, with functions relating to the resolution of local matters.
It is necessary to determine the range of persons to whom the additional punishment in the form of deprivation of the right to hold certain positions may be applied.
In accordance with paragraph 3 of Article 7 of the Law of the Republic of Kazakhstan “On Civil Service,” the Register of Positions of Political and Administrative Civil Servants shall be approved by the President of the Republic of Kazakhstan upon submission by the authorized body. Under the Register, public positions of civil servants are divided into political and administrative positions. At the same time, categories of public positions are established for administrative civil servants, whereas categories of positions are not established for political civil servants (paragraph 2 of Article 7 of the Law of the Republic of Kazakhstan “On Civil Service”).
In accordance with subparagraph 16) of Article 1 of the Law “On Civil Service,” a political civil servant is a civil servant whose appointment (election), dismissal and activities are of a policy-determining nature and who is responsible for the implementation of political goals and objectives.
The entry of citizens into the civil service as political civil servants is carried out on the basis of appointment or election, as well as in other cases, in accordance with the procedure and conditions established by the legislation of the Republic of Kazakhstan (Article 14 of the Law).
An administrative civil servant is a civil servant who performs their activities on a permanent professional basis, except in cases provided for by the laws of the Republic of Kazakhstan and acts of the President of the Republic of Kazakhstan (subparagraph 10) of Article 1 of the Law).
Under the Register of Positions of Civil Servants, administrative public positions of civil servants are divided into Corps “A” and Corps “B,” which, in turn, are divided into categories.
Deprivation of the right to engage in certain activities may be applied to persons engaged in professional activities in organizations and enterprises of any form of ownership. Such offenses also specify a special characteristic of the subject — the person's professional affiliation.
Deprivation of the right to engage in certain activities entails a prohibition on engaging both in work in a particular profession, such as teaching, medical practice, professional driving, etc., and in other types of activities not related to a specific profession, such as advocacy, notarial activities, individual labor activities, driving a personal vehicle, hunting, fishing, etc.
Prohibition on engaging in certain activities is, in many cases, also associated with the actual deprivation of the convicted person of the right to hold positions related to such activities.
Part 2 of the article under commentary establishes the term of deprivation of the right to hold a certain position or engage in certain activities. The minimum term for imposing this type of punishment has been established by the legislator at one year, and the maximum term at ten years.
For the commission of crimes in the sphere of economic activity and against the interests of service in financial organizations by a senior employee of a financial organization, banking and/or insurance holding company, a major participant (major shareholder) who is an individual, the head, a member of the management body, a member of the executive body, or the chief accountant of a major participant (major shareholder) that is a legal entity of a financial organization, as provided for in Part 2 of Article 238, Part 2 of Article 239 and Part 2 of Article 250 of the Criminal Code, which resulted in the infliction of major damage on a citizen, legal entity, financial organization or the state, deprivation of the right to hold a certain position shall be imposed for a period of five years up to the establishment of a lifetime prohibition on holding the position of a senior employee of a financial organization, banking and/or insurance holding company and being a major participant (major shareholder) of a financial organization.
For the commission of crimes against the sexual inviolability of minors, as well as crimes provided for in Parts 2, 3, 4 and 5 of Article 132 and Parts 2 and 3 of Article 133 of the Criminal Code, deprivation of the right to hold certain positions or engage in certain activities shall be mandatory and shall consist of a lifetime prohibition on holding teaching positions and positions involving work with minors.
For the commission of a number of crimes, mandatory imposition of punishment in the form of deprivation of the right to hold certain positions or engage in certain activities is also provided for; it consists of a lifetime prohibition on holding teaching positions and positions involving work with minors. These include crimes provided for in Parts 3-1, 3-2 and 4 of Article 120 of the Criminal Code, “Rape”; Parts 3-1, 3-2 and Part 4 of Article 121 of the Criminal Code, “Violent Acts of a Sexual Nature”; Parts 2 and 3 of Article 122 of the Criminal Code, “Sexual Intercourse or Other Acts of a Sexual Nature with a Person Who Has Not Reached the Age of Sixteen”; Parts 2 and 3 of Article 124 of the Criminal Code, “Corruption of Young Children”; Parts 2, 3, 4 and 5 of Article 132 of the Criminal Code, “Involvement of a Minor in the Commission of Criminal Offenses”; Parts 2 and 3 of Article 133 of the Criminal Code, “Involvement of a Minor in the Commission of Antisocial Acts”; subparagraph 2) of Part 4 of Article 134 of the Criminal Code, “Involvement of a Minor in Prostitution”; and subparagraphs 1) and 2) of Part 3 of Article 312 of the Criminal Code, “Production and Circulation of Materials or Items Containing Pornographic Images of Minors or Their Involvement in Entertainment Events of a Pornographic Nature.”
For the commission of transport-related crimes provided for in Part 4 of Article 345-1 and Article 346 of the Criminal Code, deprivation of the right to hold certain positions or engage in certain activities shall consist of a lifetime prohibition on the right to drive a motor vehicle.
Mandatory imposition of deprivation of the right to hold certain positions or engage in certain activities is also provided for the commission of corruption-related crimes. It consists of a lifetime prohibition on holding positions in the civil service, serving as a judge, holding positions in local self-government bodies, the National Bank of the Republic of Kazakhstan and its departments, the authorized body for the regulation, control and supervision of the financial market and financial organizations, state organizations and entities of the quasi-public sector.
According to Part 3 of the article under commentary, deprivation of the right to hold certain positions or engage in certain activities is possible not only in cases provided for by the sanctions of articles of the Special Part of the Criminal Code of the Republic of Kazakhstan, but also in cases where it is not provided for as an additional punishment in the relevant article of the Special Part of the Criminal Code of the Republic of Kazakhstan. In such cases, the court may impose punishment in the form of deprivation of the right to hold certain positions or engage in certain activities as an additional punishment for the relevant criminal offense. In doing so, the nature and degree of public danger of the act committed and the personality of the offender shall be taken into account. Furthermore, the court must recognize that it is impossible to preserve the convicted person's right to hold certain positions or engage in certain activities.
In accordance with paragraph 21 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan “On Certain Issues of Imposing Criminal Punishment,” deprivation of the right to hold certain positions or engage in certain activities as an additional punishment may also be imposed in cases where it is not provided for as a punishment in the article of the Special Part of the Criminal Code under which the criminal offense was classified. In such cases, the decision to impose an additional punishment in the operative part of the judgment must contain a reference to Article 50 of the Criminal Code, as appropriate.
According to Part 4 of the article under commentary, where this punishment is imposed as an additional punishment to imprisonment or arrest, it shall extend throughout the entire period of serving the principal punishment; however, its term shall be calculated from the moment the imprisonment or arrest has been served. Where deprivation of the right to hold certain positions or engage in certain activities is imposed as an additional type of punishment to other principal types of punishment, as well as in cases of deferment of the execution of punishment or conditional conviction, its term shall be calculated from the moment the court judgment enters into legal force.
The legislator has provided for two methods of calculating the terms of deprivation of the right to hold certain positions or engage in certain activities in the Criminal Code of the Republic of Kazakhstan: execution after serving the principal punishment and execution simultaneously with the principal punishment.
The procedure for executing this type of punishment is regulated by Articles 72–76 of the Penal Enforcement Code.
According to Part 2 of Article 24 of the Penal Enforcement Code, execution of the punishment in the form of deprivation of the right to hold certain positions or engage in certain activities is carried out by the probation service at the convicted person's place of residence or by the institution during the execution of a sentence of imprisonment.
A court judgment depriving a person of the right to hold certain positions or engage in certain activities shall be executed by the administration of the organization at the convicted person's place of employment, as well as by bodies authorized, in accordance with the legislation of the Republic of Kazakhstan, to revoke a permit to engage in a particular activity.
Execution of a court judgment imposing lifetime deprivation of the right to hold certain positions or engage in certain activities shall be monitored by authorized state bodies (Part 3 of Article 24 of the Penal Enforcement Code).
A court judgment imposing a lifetime prohibition on holding teaching positions and positions involving work with minors shall, in accordance with Part 1 of Article 72 of the Penal Enforcement Code, be executed by organizations regardless of their form of ownership in the manner established by the authorized body in the field of education.
A court judgment imposing a lifetime prohibition on holding certain positions shall be executed by the administrations of state institutions and organizations specified in the Criminal Code of the Republic of Kazakhstan (Part 2 of Article 72 of the Penal Enforcement Code).
The organization of the execution of punishment in the form of deprivation of the right to hold certain positions or engage in certain activities, imposed as an additional punishment to arrest or imprisonment, shall be carried out by the institution or body executing the principal punishment and, after the principal punishment has been served, by the probation service at the convicted person's place of residence (Part 3 of Article 72 of the Penal Enforcement Code).
The organization of the execution of this punishment, imposed as an additional punishment to other types of punishment, as well as in cases of deferment of the execution of punishment or conditional conviction, shall be carried out by the probation service at the convicted person's place of residence (Part 4 of Article 72 of the Penal Enforcement Code).
A person convicted to the punishment of deprivation of the right to hold certain positions or engage in certain activities shall be obliged to:
- notify the probation service of their place of employment and residence, any changes thereto, and dismissal from employment;
- appear before the probation service when summoned (Part 1 of Article 74 of the Penal Enforcement Code).
In the event of failure to appear without valid reasons specified in Part 2 of Article 53 of the Penal Enforcement Code, the convicted person may be subjected to compulsory attendance (Part 2 of Article 74 of the Penal Enforcement Code).
A person convicted to the punishment of deprivation of the right to hold certain positions or engage in certain activities who evades execution of the punishment shall bear liability established by law (Part 3 of Article 74 of the Penal Enforcement Code).
When executing this type of punishment, obligations are also imposed on the administration of the organization where the convicted person works.
According to Part 1 of Article 75 of the Penal Enforcement Code, organizations, regardless of their form of ownership, shall verify candidates for a particular position to determine whether they are subject to a lifetime prohibition on holding teaching positions and positions involving work with minors, as well as positions in the civil service and local self-government bodies.
A court judgment depriving a person of the right to hold certain positions shall be binding on the administrations of state institutions and local self-government bodies. A court judgment depriving a person of the right to engage in certain activities shall be binding on the administration of the organization at the convicted person's place of employment (Part 2 of Article 75 of the Penal Enforcement Code).
The administration of the organization at the convicted person's place of employment shall be obliged to:
no later than three working days after receiving a copy of the court judgment that has entered into legal force or notification from the probation service, dismiss the convicted person from the position or type of activity in respect of which the person has been deprived of the right, and send a notification to the probation service confirming execution of the court judgment;
submit, at the request of the probation service, documents related to the execution of the punishment;
notify the probation service within three working days in cases where the employment contract with the convicted person is amended or terminated (Part 3 of Article 75 of the Penal Enforcement Code).
Officials of organizations entrusted with the obligation to execute a court judgment imposing punishment in the form of deprivation of the right to hold a certain position who are responsible for its non-execution shall bear liability established by law (Part 4 of Article 75 of the Penal Enforcement Code).
Execution of a court judgment depriving a person of the right to engage in certain activities shall be binding on bodies authorized to revoke a permit to engage in the relevant type of activity (Part 1 of Article 76 of the Penal Enforcement Code). No later than three working days after receiving a copy of the court judgment that has entered into legal force or notification from the probation service, the said bodies shall be obliged to revoke the permit to engage in the type of activity prohibited to the convicted person, confiscate the relevant document granting that person the right to engage in the specified type of activity, and send notification thereof to the probation service (Part 2 of Article 76 of the Penal Enforcement Code).
Officials of bodies authorized to revoke permits to engage in certain activities who are responsible for failing to execute a court judgment depriving a person of the right to engage in a particular activity shall bear liability established by law (Part 3 of Article 76 of the Penal Enforcement Code).
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 reforming 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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