Commentary to article 77. Obstruction of the legitimate activities of public associations and charitable organizations The Code of the Republic of Kazakhstan on Administrative Offences
Obstruction of the legitimate activities of public associations, as well as charitable organizations by an official using his official position, as well as interference in the legitimate activities of these associations committed by an official using his official position, resulting in a violation of their rights and legitimate interests, –
entail a fine in the amount of two hundred and fifty monthly calculation indices.
The generic object of the offense is the human and civil rights to freedom of association established and guaranteed by the State, and the corresponding social relations resulting from this.
The direct object of this administrative offense is public relations arising in connection with the exercise by citizens of the Republic of Kazakhstan of the right to freedom of association, in particular the normal, legally compliant activities of such associations.
The article under review provides for liability for non-compliance with the principles set out in Article 4 of the Law of the Republic of Kazakhstan "On Public Associations" dated May 31, 1996 No. 3, according to which the State ensures respect for the rights and legitimate interests of public associations. Illegal interference of the state in the affairs of public associations and public associations in the affairs of the State, the assignment of functions of state bodies to public associations is not allowed.
Also, the object of encroachment is the activities of charitable organizations, which, in accordance with the Law of the Republic of Kazakhstan dated November 16, 2015 "On Charity", are understood to be a non-profit organization established to carry out charity in accordance with this Law, the laws of the Republic of Kazakhstan, and international treaties of the Republic of Kazakhstan. This Law also established the principles of cooperation between charitable organizations and the state, one of which (Part 2 of art. 6) is the prevention of illegal interference by the state in the affairs of subjects of charity engaged in charity, and benefactors in the affairs of the state, assigning them the functions of state bodies.
When qualifying acts according to the composition being commented, it is necessary to take into account a number of fundamental issues. In particular, the definition of the degree of legality of the activities of a public association (whether the requirements established by law are observed by the association itself, in which case and on what basis the official intervenes, the forms of intervention), the content of the term "obstruction" and "interference".
Usually, the term "obstruction" is associated with the creation by an official of hindrances or obstacles to the achievement (realization) of the statutory legitimate goals of the association, the exercise of their rights. A passive form of expression of "obstruction" is also possible, in the form of deliberate failure by an official to perform the relevant functions assigned to him (red tape during the consideration of appeals, etc.).
The term "interference", in contrast to "obstruction", as a rule, covers only active purposeful actions of an official aimed at deliberately undermining the normal functioning of a public association.
It is also necessary to take into account the mandatory feature related to the consequences of unlawful interference (obstruction), established in the disposition of the commented article, which is an actual violation of rights and legitimate interests. This condition characterizes the composition of the offense as material, i.e. for the occurrence of responsibility, the presence of consequences is mandatory.
Also, a constructive sign of the objective side is the use of official position by an official.
Thus, complex forms of the objective side (action, inaction) are formed.
The subjective side is expressed by an intentional form of guilt.
The commented article provides for officials as subjects. Basically, these are persons authorized by the state to perform control, supervisory or licensing functions (possibly also functions for reviewing appeals), using appropriate powers to achieve the above-mentioned illegal motives.
Cases of these offenses, according to Part 1 of Article 684 of the Administrative Code, are considered by judges of specialized district and equivalent administrative courts.
Scientific and practical commentary to the Code of the Republic of Kazakhstan on Administrative Offences (article-by-article) from the Author's team:
Bachurin Sergey Nikolaevich, Candidate of Law, Associate Professor – chapter 48 (co-authored with E.M. Khakimov);
Gabdualiev Mereke Trekovich, Candidate of Law – Chapters 11, 21, 22, 23;
Zhusipbekova Ainur Maratovna, M.yu.n. – chapter 13 (co-authored with Karpekin A.V.); chapters 33, 39 (co-authored with Seitzhanov O.T.);
Karpekin Alexander Vladimirovich, Candidate of Law, Associate Professor – chapter 13 (in collaboration with Zhusipbekova A.M.);
Korneychuk Sergey Vasilyevich – chapters 2; chapter 6 (co-authored with O.T. Seitzhanov, E.M. Khakimov); chapter 8; chapter 25 (co-authored with E.M. Khakimov); articles 457-470, 488, 488-1, 491-506; chapters 28, 30, 52;
Ilya Petrovich Koryakin, Doctor of Law, Professor – Chapter 49;
Kisykova Gulnara Bauyrzhanovna, Candidate of Law – chapter 20;
Omarova Botagoz Akimgereevna, Candidate of Law – chapters 17; chapter 18 (co-authored with B.A. Parmankulova); chapters 26, 31; chapter 32 (co-authored with B.A. Parmankulova);
Parmankulova Bayan Askhanbaevna – chapter 18 (co-authored with Omarova B.A.); chapters 19, 32 (co-authored with Omarova B.A.); chapter 43 (co-authored with Tukiev A.S.);
Podoprigora Roman Anatolyevich, Doctor of Law, Professor - Chapter 24, articles 489, 489-1, 490;
Porokhov Evgeny Viktorovich, Doctor of Law – Chapters 14, 15, 16, 29, articles 471-475;
Seitzhanov Olzhas Temirzhanovich, Candidate of Law, Associate Professor, – chapter 4; chapter 5 (co-authored with E. M. Khakimov); chapter 6 (co-authored with S.V. Korneychuk, E.M. Khakimov); chapter 9; chapter 10 (co-authored with B.E. Shaimerdenov, V.V. Filin); chapter 33 (co-authored with Zhusipbekova A.M.); chapter 36 (co-authored with Shaimerdenov B.E.); chapter 39 (co-authored with Zhusipbekova A.M.);
Smyshlyaev Alexander Sergeevich, PhD. – chapters 38, 40, 42, 43-1 (co-authored with A.S. Tukiev); chapter 44;
Aslan Sultanovich Tukiev - Candidate of Law, Associate Professor – chapters 1, 3, 35; chapters 38, 40, 42, (co-authored with A.S. Smyshlyaev); chapter 43 (co-authored with B.A. Parmankulova); chapter 43-1 (co-authored with A.S. Smyshlyaev); chapter 44-1 (co-authored with Shipp D.A.); chapter 45; 46 (co-authored with Shipp D.A.); chapter 47;
Filin Vladimir Vladimirovich, Candidate of Law, Associate Professor – Chapter 10 (in collaboration with O.T. Seitzhanov, B.E. Shaimerdenov);
Yerzhan Maratovich Khakimov, M.yu.n. – chapter 5 (co-authored with O.T. Seitzhanov); chapter 6 (co-authored with O.T. Seitzhanov, S.V. Korneychuk); chapter 7; chapter 25 (co-authored with S.V. Korneychuk); chapters 34, 41; chapter 48 (co-authored with S.N. Bachurin); chapter 53;
Shaimerdenov Bolat Yerkenovich, M.yu.n., – chapter 10 (co-authored with O.T. Seitzhanov, V.V. Filin); chapter 12; articles 476-487, 507-509; chapter 36 (co-authored with O.T. Seitzhanov); chapters 37, 50, 51.
Shipp Denis Alekseevich – chapters 44-1, 46 (in collaboration with A.S. Tukiev).
Date of amendment of the act: 01.01.2020 Date of adoption of the act: 01.01.2020 Place of acceptance: 100050000000 Authority that adopted the act: 103001000000 Region of operation: 100000000000 NPA registration number assigned by the regulatory body: 5 Status of the act: new Sphere of legal relations: 029000000000 / 028000000000 / 029002000000 / 028004000000 / 029001000000 / 026000000000 / 001000000000 / 001008000000 / 030000000000 The form of the act: COMM / CODE Legal force: 1900 Language of the Act: rus
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