Commentary to article 230. Abuse of authority by employees of private security services of the Criminal Code of the Republic of Kazakhstan of the Criminal Code of the Republic of Kazakhstan

     1. Exceeding by the head or employee of a private security service the powers granted to them in accordance with the license, contrary to the objectives of their activities, if this act is committed with the use of violence or the threat of its use,

— is punishable by restriction of liberty for a term of up to three years, or by arrest for a term of up to six months, or by imprisonment for a term of up to five years with or without deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years.      

2. The same act committed with the use of weapons or special means or causing grave consequences,

— is punishable by imprisonment for a term of three to eight years with deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years.

     One type of "other organizations" is private security services. As non-profit organizations, they are neither a government agency nor a government agency.      

The inclusion in the Criminal Code of the Republic of Kazakhstan of the corpus delicti providing for liability for abuse of authority by employees of private security services is dictated by two interrelated reasons: the need to ensure effective protection against criminal encroachments in the field of commercial and other activities and the establishment of legal control over the legality of the actions of private security services, which resulted in the adoption of The Law of the Republic of Kazakhstan "On Security Activities" dated October 19, 2000 (as amended and supplemented).      

The public danger of abuse of authority by employees of private security services is caused by the fact that the head or employee of these services commits such actions that go beyond the limits of the powers granted, resulting in harm to the rights and legitimate interests of citizens as a result of the violence applied to them.      

The direct object of the crime in question is the procedure established by law for carrying out private security activities. An additional object is the identity of the victim.      

The objective side of the crime is characterized by an act consisting in exceeding the powers granted to engage in private security services, contrary to the objectives of this activity, involving the use of violence or the threat of its use.      According to art .1 of the Law of the Republic of Kazakhstan "On Security activities" dated October 19, 2000. (with the post. ed. and add.) Security activities are understood as the implementation by individuals (individual entrepreneurs) and legal entities of activities to provide services to protect the life, health and property of individuals, as well as the property of legal entities from unlawful encroachments (security services).      

This Law does not apply to the protection of other benefits and legitimate interests of citizens and legal entities related to the field of healthcare, intellectual property, state secrets, and commercial secrets, unless otherwise provided by law.     

In accordance with Article 3 of this Law, the objectives of security activities are:      

— protection of life and health of individuals from criminal and other unlawful encroachments;      

— protection of the property of individuals and legal entities from unlawful encroachments.      

The activities of security organizations of foreign countries are prohibited on the territory of the Republic of Kazakhstan. Foreign organizations, foreigners, and stateless persons may not:      

— to carry out security activities as an individual business activity;      

— establish or be founders (participants) of private security organizations;      

— to have a private security company in trust management.      

Article 7 of the Law in question refers to entities engaged in security activities:      

— specialized security units of the Ministry of Internal Affairs of the Republic of Kazakhstan;      

— private security companies;      

— private security guards;      

— security units of individual entrepreneurs and legal entities;      

— departmental security units of government agencies.      

According to art . 9 of this Law - the protection of objects subject to state protection in accordance with the legislation is a state monopoly, which can be carried out exclusively by specialized security units of the Department of Internal Affairs, unless otherwise provided by legislative acts of the Republic of Kazakhstan. At the same time, the list of objects subject to state protection is determined by the Government of the Republic of Kazakhstan.      

Article 10 of this Law states that a private security organization is a commercial organization that provides services to protect the life, health and property of individuals, as well as the property of legal entities from unlawful encroachments (security services) as its business activity. A private security organization may not carry out other business activities.      

In accordance with Article 11 of the aforementioned Law, a private security guard is a citizen of the Republic of Kazakhstan who carries out individual business activities to provide security services to protect the life, health and property of individuals, as well as to protect the property of legal entities from unlawful encroachments (security services) when it involves the use and use of firearms and special protective equipment.      

Article 2 of the Law in question clarifies that a security unit is a special structural unit created by a legal entity or an individual entrepreneur, which is not a legal entity, to protect the life and health of its employees and its own property, when the activities of such a unit are related to the use and use of firearms and special protective equipment, as well as the use of special technical means according to the list determined by the Government of the Republic of Kazakhstan.      

According to Article 13 of this Law, a departmental security unit is a special departmental security service of state bodies, which is part (structure) of these state bodies, which is not a legal entity and is intended to protect their material and monetary values, as well as to perform other tasks determined by the legislation of the Republic of Kazakhstan.      

Control over security activities in the territory of the Republic of Kazakhstan is carried out by an authorized body determined by the Government of the Republic of Kazakhstan.      Based on the above, it can be concluded that security activities can be carried out by both government agencies and private organizations.      

Private security activities are the provision of services on a paid contractual basis to individuals and legal entities, enterprises that have a special permit (license) from the internal affairs bodies of the Republic of Kazakhstan in order to protect the legitimate rights and interests of their clients.      

Exceeding the powers granted by the license should be understood as performing actions that a person does not have the right to perform at all, or which he must perform in compliance with the conditions and procedures established by law, the grounds and forms of performing these actions, or committing actions against unauthorized persons.      

The legislator associates abuse of authority with their commission contrary to the objectives of security activities, that is, violation of current legislation, interference with the competence of state bodies, violation of the provisions set out in the constituent documents related to the goals and objectives of the private security service, etc.      

The use of violence is also one of the obligatory signs of the objective side of the composition of this crime. Abuse of office can be physical or mental. The use of violence in the performance of official duties by the head or employee of a private security service, within the meaning of Part 1 of Article 230 of the Criminal Code, is recognized as: beatings, causing minor and moderate harm to health, torture. The infliction of this harm is covered by the corpus delicti provided for in Part 1 of Article 230 of the Criminal Code and does not require additional qualification with crimes against the person.       Violence is not covered by the features of this article and requires qualification according to the totality of crimes if it constitutes causing serious harm to health or premeditated murder.      

The threat of violence means expressing an intention to use violence against a victim, including through words, gestures, demonstration and pointing of weapons, injury to health and murder. At the same time, the threat must create in the victim a reasonable idea of the danger threatening him and the real possibility of immediately carrying it out.      

The threat of murder or serious injury to health, as well as other serious violence against a person or destruction of property, is also included in the threat of physical violence and does not require additional qualification under Article 112 of the Criminal Code.      

Nonviolent forms of abuse of authority do not constitute a crime in question. In the case of nonviolent abuse of authority by the head or employee of a private security service, their actions are considered criminal, provided that they contain elements of another crime, for example, encroachment on the constitutional rights and freedoms of man and citizen, or crimes against public safety and public order.      

The crime provided for in Part 1 of Article 230 of the Criminal Code is considered completed from the moment of committing acts related to abuse of authority, committed contrary to the objectives of security activities and connected with the use of physical violence in any form or threat of its use.      

The subject of the crime in question can only be a person who is the head or employee of a private security service. Subjects of security activities have the right, in accordance with the procedure established by law, to arm their employees holding the position of a security guard in the exercise of their official duties.      

Subjects of security activities have the right to purchase civilian and service weapons, special equipment. However, they must have the appropriate license. Purchased weapons and special equipment are subject to mandatory registration (within one week from the date of purchase) with the law enforcement agencies of the Republic of Kazakhstan in accordance with the Law of the Republic of Kazakhstan "On State Control over the Turnover of Certain Types of Weapons" dated December 30, 1998 (as amended and supplemented). The heads of security organizations, in accordance with the procedure established by law, transfer weapons to full-time employees holding security positions for the period of their official duties. Weapons are issued after passing the appropriate special training.       The subjective side of the analyzed crime is expressed by direct intent. The perpetrator is aware that by his actions he is going beyond the limits of the powers defined in the license, anticipates the possibility or inevitability of consequences and wishes them to occur. In relation to the consequences that have occurred, the perpetrator may act with indirect intent. The motives that the perpetrator is guided by may be different and have no influence on qualifications.      

Part 2 of Article 230 of the Criminal Code provides for the following qualifying features: a) the use of weapons or special means; b) causing serious consequences.      

The use of weapons should be understood as their actual use (for example, firing a shot).      

The use of special means (rubber stick, handcuffs, bird cherry, etc.) should also be understood as their actual intended use.      

The grave consequences provided for in Part 2 of Article 230 of the Criminal Code should include intentional infliction of serious harm to health or causing death to the victim. At the same time, careless infliction of death (Article 101 of the Criminal Code) or reckless infliction of serious harm to health (Part 1 of Article 111 of the Criminal Code) are covered by part 2 of Article 230 of the Criminal Code. At the same time, murder (Article 96 of the Criminal Code) or causing serious harm to health under the qualifying circumstances specified in Article 103 of the Criminal Code require qualification in conjunction with Part 2 of Article 230 of the Criminal Code. If there are serious consequences, as a qualifying feature of the crime, it is completed at the time of their occurrence.

Commentary from 2007 to the Criminal Code of the Republic of Kazakhstan from the Honored Worker of Kazakhstan, Doctor of Law, Professor, Academician of the Kazakhstan National Academy of Natural Sciences BORCHASHVILI I.Sh.                  

Date of amendment of the act: 08/02/2007 Date of adoption of the act: 08/02/2007 Place of adoption: NO Body that adopted the act: 180000000000 Region of operation: 100000000000 Registration number of the NPA assigned by the normative body: 167 Status of the act: new Scope of legal relations: 028000000000 Form of the act: COMM Legal force: 1900 Language of the act: rus

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