Commentary on Article 179. Propaganda or Public Calls for the Seizure or Retention of Power, as well as the Seizure or Retention of Power or the Violent Change of the Constitutional Order of the Republic of Kazakhstan of the Criminal Code of the Republic of Kazakhstan

1. Propaganda or public calls for the violent seizure of power or the violent retention of power in violation of the Constitution of the Republic of Kazakhstan, undermining the security of the State, or the violent change of the constitutional order of the Republic of Kazakhstan, as well as the production, possession for the purpose of distribution, or distribution of materials containing such content —

shall be punishable by a fine in the amount of one thousand to five thousand monthly calculation indices, or restriction of liberty for a term of up to seven years, or deprivation of liberty for the same term.

2. The same acts committed by a person using their official position or by a leader of a public association, or using mass media or telecommunications networks, or by a group of persons or a group of persons acting by prior conspiracy, including through the use of funds received from foreign sources —

shall be punishable by deprivation of liberty for a term of five to ten years.

3. Acts aimed at the violent seizure of power or the violent retention of power in violation of the Constitution of the Republic of Kazakhstan, or the violent change of the constitutional order of the Republic of Kazakhstan —

shall be punishable by deprivation of liberty for a term of twelve to seventeen years, with or without deprivation of citizenship of the Republic of Kazakhstan.

The exercise by representatives of a foreign State, an international or foreign organization of powers falling within the competence of authorized bodies and officials of the Republic of Kazakhstan —

shall be punishable by a fine in the amount of three thousand to seven thousand monthly calculation indices, or corrective labor in the same amount, or restriction of liberty for a term of up to seven years, or deprivation of liberty for the same term.

The public danger of the crime commented on herein lies in the fact that this crime encroaches upon those foundations of the constitutional order of the Republic of Kazakhstan that establish the principles and procedures for the formation and functioning of state power.

“ The sole source of state power is the people. The people exercise power directly through a republican referendum and free elections, and also delegate the exercise of their power to state bodies. State power in the Republic is unified and is exercised on the basis of the Constitution and laws in accordance with the principle of its division into legislative, executive and judicial branches and their interaction through a system of checks and balances,” as established in Article 3 of the Constitution of the Republic of Kazakhstan.

In accordance with Article 3 of the Constitution of the Republic of Kazakhstan, no one may usurp power in the Republic of Kazakhstan. Usurpation of power is prosecuted by law. The right to speak on behalf of the people and the State belongs to the President, as well as to the Parliament of the Republic within the limits of its constitutional powers.

Pursuant to subparagraph 39) of Article 3 of the Criminal Code, this crime is classified as an extremist crime.

The basis of the criminal-law prohibition contained in Article 179 of the Criminal Code lies in the norms of international law. Thus, pursuant to Article 3 of the Shanghai Convention on Combating Terrorism, Separatism and Extremism of 15 July 2001, the States Parties shall take all necessary measures to ensure that extremism cannot under any circumstances be justified solely on political, philosophical, ideological, racial, ethnic, religious or other similar grounds. This article establishes a permissible restriction on the right to freedom of speech, justified by international and constitutional provisions.

According to Article 19 of the International Covenant on Civil and Political Rights of 16 December 1966, the exercise of the right to freedom of expression may be restricted by law where such restriction is necessary for respect of the rights and reputations of others or for the protection of State security, public order, public health or morals.

It should be noted that, among the extremist crimes in this Chapter, in addition to Article 179 of the Criminal Code, Articles 180, 181, 182 and 184 of the Criminal Code are also classified as extremist crimes. Article 184 of the Criminal Code, “Sabotage,” is also classified as a terrorist crime.

The object of the crime is the foundations of the constitutional order of the Republic of Kazakhstan.

The constitutional order is a combination of such legal institutions as the form of government, the form of state structure, state sovereignty, the political regime and the legal status of the individual. Accordingly, the foundations of the constitutional order of the Republic of Kazakhstan may be recognized as such institutions as popular sovereignty, the presidential form of government, the unitary form of state structure, the democratic, secular and social character of the State, and the recognition of human and civil rights and freedoms as the highest value of the State.

Paragraph 17 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated 8 December 2017, “On Certain Issues of Judicial Practice in the Application of Legislation on Terrorist and Extremist Crimes,” states that criminal liability arises for extremist crimes specified in subparagraph 39) of Article 3 of the Criminal Code.

Courts should bear in mind that, in accordance with subparagraph 1) of Article 1 of the Law of the Republic of Kazakhstan dated 18 February 2005, “On Countering Extremism,” extremism means the organization and (or) commission by an individual and (or) legal entity, or an association of individuals and (or) legal entities, of actions on behalf of organizations recognized as extremist in accordance with the established procedure; and actions by an individual and (or) legal entity, or an association of individuals and (or) legal entities, aimed at: the violent change of the constitutional order, violation of the sovereignty of the Republic of Kazakhstan, the integrity, inviolability and inalienability of its territory, undermining the national security and defense capability of the State, the violent seizure of power or the violent retention of power, the creation, leadership of and participation in an illegal paramilitary formation, the organization of and participation in an armed rebellion, and incitement of social or class discord (political extremism); incitement of racial, national and tribal discord, including that associated with violence or calls for violence (national extremism); incitement of religious hostility or discord, including that associated with violence or calls for violence, as well as the use of any religious practice that poses a threat to the security, life, health, morals, or rights and freedoms of citizens (religious extremism).

The objective element of the corpus delicti provided for in Part 1 of the Article under consideration consists of the commission of one of the following acts:

propaganda or public calls for the violent seizure of power in violation of the Constitution of the Republic of Kazakhstan;

propaganda or public calls for the violent retention of power in violation of the Constitution of the Republic of Kazakhstan;

propaganda or public calls for undermining the security of the State;

propaganda or public calls for the violent change of the constitutional order of the Republic of Kazakhstan;

the production, possession for the purpose of distribution, or distribution of materials containing propaganda or public calls for the violent seizure of power or the violent retention of power in violation of the Constitution of the Republic of Kazakhstan, undermining the security of the State, or the violent change of the constitutional order of the Republic of Kazakhstan.

Propaganda is the dissemination and in-depth explanation of certain ideas, doctrines, views and knowledge; ideological influence on the broad masses. In the criminal-law sense, propaganda is understood as the dissemination among a certain group of persons of views and ideas aimed at the violent seizure of power or the violent retention of power in violation of the Constitution of the Republic of Kazakhstan, undermining the security of the State, or the violent change of the constitutional order of the Republic of Kazakhstan. By its criminal-law nature, propaganda is one of the forms of incitement.

Calls consist of addressing an indefinite group of persons with the aim of convincing them of the necessity and expediency of the violent seizure of power or the violent retention of power in violation of the Constitution of the Republic of Kazakhstan, undermining the security of the State, or the violent change of the constitutional order of the Republic of Kazakhstan.

Purposefulness makes it possible to distinguish calls from the expression of personal opinions on state and political issues in family and friendly conversations. In this case, the purpose is to unite the aspirations of citizens, activate their will and direct their behavior towards the implementation of extremist activities.

Public calls should be understood as appeals expressed in any form (oral, written, using technical means, public information and telecommunications networks, including the Internet) addressed to other persons with the aim of inducing them to commit the acts specified in Part 1 of Article 179 of the Criminal Code.

An obligatory feature of the objective element of the corpus delicti of the crime under consideration is the circumstances in which it is committed: the calls must be made publicly.

The public nature of calls is expressed in the fact that they are made directly in the presence of third parties or, in the case of their written form, are intended for subsequent acquaintance by other persons (for example, by posting posters or slogans containing the relevant content).

Public calls for undermining the security of the State are calls to commit other crimes against the foundations of the constitutional order and security of the Republic of Kazakhstan (for example, public calls to commit high treason, an attempt on the life of the President of the Republic of Kazakhstan, sabotage, etc.).

The production of materials containing propaganda or public calls for the violent seizure of power or the violent retention of power in violation of the Constitution of the Republic of Kazakhstan, undermining the security of the State, or the violent change of the constitutional order of the Republic of Kazakhstan means any intentional actions associated with the creation, copying or reproduction of materials containing propaganda or public calls for the violent seizure of power or the violent retention of power in violation of the Constitution of the Republic of Kazakhstan, undermining the security of the State, or the violent change of the constitutional order of the Republic of Kazakhstan.

Possession should be understood as any intentional actions associated with materials containing propaganda or public calls for the violent seizure of power or the violent retention of power in violation of the Constitution of the Republic of Kazakhstan, undermining the security of the State, or the violent change of the constitutional order of the Republic of Kazakhstan being in the possession of the guilty person (on their person, in premises, in a hiding place, etc.). The duration of possession does not affect the legal classification of the act. Possession is considered a completed crime from the moment the specified items are in the possession of the guilty person. At the same time, in the case of possession, the purpose of distributing such materials is an obligatory element.

When determining whether there was intent to illegally produce or possess materials for the purpose of distribution, the totality of evidence should be taken into account (for example, the discovery of the specified materials in large quantities, etc.).

Distribution of materials containing propaganda or public calls for the violent seizure of power or the violent retention of power in violation of the Constitution of the Republic of Kazakhstan, undermining the security of the State, or the violent change of the constitutional order of the Republic of Kazakhstan should be understood as their transfer, on any terms, to a broad range of persons, as well as the dissemination among a broad range of persons of information in any form (literary works, leaflets, films, etc.) for the purpose of arousing in them a negative attitude towards the existing constitutional order and a determination to act against that order.

Another important feature of the corpus delicti under consideration is that the calls must specifically be directed towards the violent retention of power, changing the constitutional order or violating the territorial integrity of the Republic of Kazakhstan and the unity of its territory.

The crime is considered completed regardless of whether the guilty person succeeded in provoking the violent seizure of power or the violent retention of power in violation of the Constitution of the Republic of Kazakhstan, undermining the security of the State, or the violent change of the constitutional order of the Republic of Kazakhstan.

The subjective element of the crime is characterized by direct intent, that is, the person is aware of the social danger of their actions, foresees the possibility or inevitability of socially dangerous consequences and desires the occurrence of such consequences, as well as having a special purpose — the violent seizure or retention of power or the change of the constitutional order of the Republic of Kazakhstan.

The motives for this crime may be highly diverse — ranging from ideological rejection to outright hatred of the existing constitutional order of the Republic of Kazakhstan.

The subject of the crime is a sane individual who has reached the age of 16.

Part 2 of Article 179 of the Criminal Code establishes liability for the same acts provided for in Part 1 of Article 179 of the Criminal Code, but committed by a person using their official position or by a leader of a public association, or using mass media or telecommunications networks, or by a group of persons or a group of persons acting by prior conspiracy, including through the use of funds received from foreign sources.

Use of official position should be understood as the use by officials and other persons holding relevant positions in organizations, regardless of their form of ownership, of their official position for propaganda or public calls for the violent seizure or retention of power, undermining the security of the State, or the violent change of the constitutional order of the Republic of Kazakhstan, as well as for the production, possession for the purpose of distribution, or distribution of materials containing such content.

In such cases, additional legal classification of the guilty person's actions under articles providing for liability for official crimes or crimes against the interests of service in commercial and other organizations is not required.

Subparagraph 21) of Article 3 of the Criminal Code establishes the concept of a leader of a public association — a head of a public association, as well as another member of a public association who, through their influence and authority, is capable of independently exercising managerial influence over the activities of that public association.

Use of mass media or telecommunications networks means propaganda and calls for the seizure or retention of power or the violent change of the constitutional order of the Republic of Kazakhstan published in a periodical printed publication, as well as disseminated by radio or television or using technical means for the transmission and processing of information (including websites on publicly accessible telecommunications networks such as the Internet, etc.).

In accordance with subparagraph 4) of Article 1 of the Law of the Republic of Kazakhstan dated 23 July 1999, “On Mass Media,” mass media means “a periodical printed publication, television or radio channel, documentary cinematography, audiovisual recording and any other form of periodic or continuous public dissemination of mass information, including Internet resources.” In accordance with subparagraph 11) of Article 1 of this Law, a periodical printed publication means a newspaper, magazine, almanac, bulletin or supplements thereto, having a permanent title and current issue number and published at least once every three months.

The use of mass media implies the use of television, radio, newspapers, magazines and Internet resources both by their employees (journalists) and by other persons.

Telecommunication means the transmission and reception over a distance of audio signals, images, text and other data using an electrical or optical signal, as well as electromagnetic waves (accordingly, telecommunications networks may be either wired or wireless).

A system of technical means through which telecommunications are carried out constitutes a telecommunications network.

Telecommunications networks include, in particular, television and radio networks, computer networks and telephone communication networks. Propaganda and calls for the violent seizure of power or the violent retention of power, as well as the distribution of materials of such extremist content using any telecommunications networks, constitute a qualified corpus delicti of the crime, liability for which is provided for in Part 2 of Article 179 of the Criminal Code. The public danger of this act is assessed by the legislator as higher because the dissemination of propaganda materials and unlawful public calls through telecommunications networks makes it possible to significantly expand the audience that the offender seeks to reach when distributing such extremist information.

An act committed by a group of persons or by a group of persons acting by prior conspiracy is also classified under Part 2 of Article 179 of the Criminal Code. According to Article 31 of the Criminal Code, a criminal offense is recognized as having been committed by a group of persons if two or more perpetrators jointly participated in its commission without prior conspiracy, and a criminal offense is recognized as having been committed by a group of persons by prior conspiracy if persons who had agreed in advance to commit the criminal offense jointly participated in it.

Part 3 of Article 179 of the Criminal Code provides for criminal liability for acts aimed at the violent seizure of power or the violent retention of power in violation of the Constitution of the Republic of Kazakhstan, or the violent change of the constitutional order of the Republic of Kazakhstan.

Acts aimed at the violent seizure of power constitute the most extreme form of violation of Article 3 of the Constitution of the Republic of Kazakhstan, according to which “no one may usurp power in the Republic of Kazakhstan. Usurpation of power is prosecuted by law.” Such acts include attempts to call for the seizure of power by unconstitutional means, and the acquisition of power in the Republic of Kazakhstan by individuals, groups, political parties, movements or other political forces to which it did not previously belong, without changing the constitutional order.

In Part 3 of Article 179 of the Criminal Code, the legislator identifies only one unconstitutional method of seizing and retaining power, as well as changing the constitutional order — violence. Violence may involve, for example, taking into custody, internment, forcible physical isolation, beatings or causing bodily harm to persons representing government bodies established in accordance with the Constitution and laws of the Republic of Kazakhstan. If the violent seizure of power is accompanied by the deprivation of life, the actions of the guilty person should, depending on the motives and purposes, be classified either as an attempt on the life of the President of the Republic of Kazakhstan (Article 178 of the Criminal Code), an attempt on the life of a state or public figure (Part 4 of Article 255 of the Criminal Code), or murder (Article 99 of the Criminal Code).

The violent seizure of power is the acquisition of power by violent means by individuals, groups or organizations to which such power did not belong. The actions committed may vary: from the physical elimination of persons lawfully exercising governmental powers or their forced isolation to blocking the work of legislative, executive and judicial authorities, isolating deputies and members of the Government, preventing them from entering their workplaces, threatening them with physical violence, etc.

In this form, the corpus delicti is completed from the moment the acts aimed at the violent seizure of power are committed, regardless of whether they resulted in the actual seizure of power.

If the violent seizure of power was accompanied by the organization of mass riots or an armed rebellion, the act should be classified cumulatively under Article 272 of the Criminal Code or Articles 181 and 179 of the Criminal Code.

Acts aimed at the violent retention of power mean the preservation or attempted preservation of power in violation of the Constitution of the Republic of Kazakhstan by persons who previously held it on lawful grounds (upon the expiration of the term of office of an official or body), or by persons into whose hands power unlawfully passed as a result of the violent seizure of power or a coup d'état.

Acts aimed at the violent change of the constitutional order constitute the next stage of the unlawful encroachment, when, following the seizure or unlawful retention of power, a new system of state power is formed and the constitutional order is changed. Acts aimed at the violent change of the constitutional order may be expressed in changing the structure of state power, abolishing certain institutions of power and introducing new ones, etc.

The crime provided for in Part 3 of the Article under consideration is deemed completed from the moment acts aimed at the violent seizure of power or the violent retention of power in violation of the Constitution of the Republic of Kazakhstan, or acts aimed at the violent change of the constitutional order of the Republic of Kazakhstan, are committed, regardless of whether the guilty persons succeeded in carrying out their criminal plans (seizing or retaining power or changing the constitutional order of the Republic of Kazakhstan).

The subject of the crime under Part 3 of Article 179 of the Criminal Code is a person who has reached the age of 16; in the case of violent retention of power, the subject of the crime may be a former holder of state power who is legally obliged to transfer it to other persons who have come to power through constitutional means.

Part 4 of Article 179 of the Criminal Code establishes liability for the exercise by representatives of a foreign State, an international or foreign organization of powers falling within the competence of authorized bodies and officials of the Republic of Kazakhstan.

The legislator has established liability for the exercise by representatives of a foreign State, an international or foreign organization of powers falling within the competence of authorized bodies and officials of the Republic of Kazakhstan. This contradicts the fundamental principles of public service (Article 4 of the Law).

Furthermore, pursuant to paragraph 1 of Article 16 of the Law of the Republic of Kazakhstan dated 23 November 2015, “On Public Service,” citizens of the Republic of Kazakhstan who meet the qualification requirements, are capable of performing the official duties assigned to them by virtue of their personal and professional qualities, state of health and level of education, and have not reached the retirement age established by the law of the Republic of Kazakhstan, are admitted to public service.

The exercise of powers means the implementation of tasks and functions in state bodies within the scope of rights and duties granted by law. The crime under Part 4 of Article 179 of the Criminal Code is deemed completed from the moment the specified persons exercise powers falling within the competence of authorized bodies and officials of the Republic of Kazakhstan.

Representatives of a foreign State, an international or foreign organization are their official representatives (members of governmental organizations, employees of diplomatic missions, employees of foreign intelligence services, etc.), as well as other persons carrying out their instructions.

The subjective element is characterized by direct intent: the offender is aware that, being a representative of a foreign State or an international or foreign organization, they are exercising powers falling within the competence of authorized bodies and officials of the Republic of Kazakhstan. The purposes and motives may vary and do not affect the legal classification of this crime.

The provision set out in the note to Article 175 of the Criminal Code applies to this crime, according to which a person who has committed a crime provided for in the Article under consideration shall be released from criminal liability if, by voluntarily or timely notifying state bodies or otherwise, they contributed to preventing damage to the interests of the Republic of Kazakhstan, provided that their actions do not contain the elements of another crime (see the commentary to Article 175 of the Criminal Code).

The acts provided for in Parts 1, 2 and 4 of Article 179 of the Criminal Code are classified as serious crimes.

The act provided for in Part 3 of Article 179 of the Criminal Code is classified as an especially serious crime.

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, Honored Worker of the Ministry of Internal Affairs of the Republic of Kazakhstan.

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