Commentary on Article 370. Inaction in Office of the Criminal Code of the Republic of Kazakhstan
1. Inaction in office, that is, failure by a person authorized to perform state functions, or a person equated thereto, or an official, to perform their official duties for the purpose of obtaining benefits and advantages for themselves or other persons or organizations, or causing harm to other persons or organizations, where such failure has resulted in a substantial violation of the rights and legitimate interests of citizens or organizations, or the legally protected interests of society or the state, —
shall be punishable by a fine in an amount of up to two thousand monthly calculation indices, or corrective labor in the same amount, or community service for a period of up to six hundred hours, or restriction of liberty for a period of up to two years, or imprisonment for the same period, with confiscation of property and lifelong deprivation of the right to hold certain positions or engage in certain activities.
2. Excluded by Law of the Republic of Kazakhstan dated July 12, 2018, No. 180-VI.
2-1. The same act committed by an employee of a law enforcement agency —
shall be punishable by a fine in an amount of up to three thousand monthly calculation indices, or corrective labor in the same amount, or community service for a period of up to eight hundred hours, or restriction of liberty for a period of up to three years, or imprisonment for the same period, with confiscation of property and lifelong deprivation of the right to hold certain positions or engage in certain activities.
3. The same act committed by a person holding a responsible public position —
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 community service for a period of up to one thousand two hundred hours, or restriction of liberty for a period of up to five years, or imprisonment for the same period, 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, 2-1 or Three of this Article:
1) resulting in grave consequences;
2) committed by a person holding a responsible public position in a law enforcement agency, or by a judge, —
shall be punishable by restriction of liberty for a period of up to seven years or imprisonment for the same period, with confiscation of property and lifelong deprivation of the right to hold certain positions or engage in certain activities.
The public danger of the crime under consideration lies in the violation of the procedure established by the legislation of the Republic of Kazakhstan governing the activities of public authorities, civil servants and officials, as well as the established procedure for the exercise of their rights and duties.
The object of this crime is the normal functioning of state bodies. An additional object of the particularly aggravated composition of this crime may include property, economic interests and health.
From the objective standpoint, inaction in office consists of the following combination of elements:
failure by a person authorized to perform state functions, or a person equated thereto, or an official, to perform their official duties;
the occurrence of socially dangerous consequences;
the existence of a causal relationship between the act of the perpetrator and these consequences.
The act may be committed exclusively in the form of omission. For the elements of the crime of inaction in office to be present, the guilty person must fail to perform actions which, by virtue of the law or their official powers, fall within the scope of their official duties, provided that they had a real opportunity to perform such actions under the specific circumstances.
The failure of the guilty person to perform a particular action or to take the necessary measures must contradict the requirements established by laws or other regulatory legal acts and official duties.
For example, in violation of the requirements of subparagraph 2) of paragraph 1 of Article 16 of the Law of the Republic of Kazakhstan dated January 6, 2011, “On Law Enforcement Service”, and paragraph 1 of Article 19 of the Law of the Republic of Kazakhstan dated April 23, 2014, “On Internal Affairs Bodies”, a district police inspector observes two men fighting without taking any action to stop their unlawful conduct, despite the fact that, by virtue of their official position and the duties imposed on them by law, they are obliged to intervene and prevent the offence.
By its structure, the offence of inaction in office belongs to the category of material offences. The crime is considered completed from the moment a substantial violation of the rights and legitimate interests of citizens or organizations, or the legally protected interests of society or the state, occurs.
For the purposes of this offence, a substantial violation of the rights and legitimate interests of citizens or organizations, or the legally protected interests of society or the state, means a violation of the constitutional rights and freedoms of individuals and citizens, the rights and legitimate interests of organizations, and the legally protected interests of society and the state; the infliction of significant damage; the occurrence of a difficult life situation for the victim; disruption of the normal functioning of organizations or state bodies; and other consequences indicating the substantial nature of the harm caused.
From the subjective standpoint, the guilt of a person authorized to perform state functions, or a person equated thereto, or an official, is expressed in direct intent. By failing to perform official duties that they were required to perform, the guilty person is aware of the socially dangerous nature of their omission and foresees the occurrence of harm in the form of a substantial violation of the rights and legitimate interests of citizens or organizations, or the legally protected interests of society or the state. Foreseeing the occurrence of socially dangerous consequences, the guilty person desires their occurrence, acting with the purpose of obtaining benefits and advantages for themselves or other persons or organizations, or causing harm to other persons or organizations.
If the subject is mistaken in believing that the performance of a particular action (or omission) does not fall within their duties, or does not foresee that their omission will result in a substantial violation of the rights and legitimate interests of citizens and organizations, or the legally protected interests of society or the state, or, while foreseeing such consequences, recklessly relies on their prevention, then their actions do not constitute a crime.
Inaction in office, in itself, cannot constitute a completed criminal offence if the guilty person does not pursue the above-mentioned purposes.
Benefits and advantages may be both material and non-material in nature.
Material benefits are property-related goods and advantages, which should be understood to include various services provided free of charge despite being subject to payment, or the unlawful use of privileges granting preferential rights to property, the performance of construction and repair works, the provision of sanatorium or tourist vouchers, travel tickets, and the provision of loans or credits on preferential terms, etc.
Non-material benefits and advantages should be understood to mean an artificial improvement in the perceived efficiency of work, an increase in its indicators and performance results, etc.
The subject of the crime may only be a person authorized to perform state functions, or a person equated thereto, or an official, the definitions of which are provided in subparagraphs 26), 27) and 28) of Article 3 of the Criminal Code.
Part 2-1 of Article 370 of the Criminal Code provides for criminal liability for the same act committed by an employee of a law enforcement agency.
Part 3 of Article 370 of the Criminal Code provides for an aggravating qualifying element: commission of this crime by a person holding a responsible public position (see the commentary to Article 361 of the Criminal Code).
Part 4 of Article 370 of the Criminal Code establishes the particularly aggravated composition of inaction in office: 1) resulting in grave consequences; 2) committed by a person holding a responsible public position in a law enforcement agency, or by a judge.
In accordance with subparagraph 4) of Article 3 of the Criminal Code, grave consequences caused by inaction in office are understood to include the following consequences: the death of one person, the death of two or more persons; suicide by the victim or their close relative(s); infliction of grievous bodily harm; infliction of grievous bodily harm on two or more persons; mass illness, infection, radiation exposure or poisoning of people; deterioration in the health of the population and the environment; the occurrence of a man-made or environmental disaster, or an environmental emergency; the infliction of large or especially large damage; and other consequences indicating the severity of the harm caused.
The commentary to subparagraph 2) of Part 4 of Article 370 of the Criminal Code is similar to the commentary to Article 361 of the Criminal Code.
It should be noted that courts must strictly comply with the provisions of the law concerning a differentiated approach to sentencing persons found guilty of corruption-related crimes.
In doing so, courts must proceed from the nature and degree of public danger of the act committed, avoiding the imposition of both excessively lenient and excessively severe criminal penalties, while taking into account the explanations set out in the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated June 25, 2015, “On Certain Issues of Sentencing”.
For the commission of corruption offences, the additional penalty of lifelong deprivation of the right to hold a certain position or engage in a certain activity must be imposed irrespective of whether the person was engaged in a particular activity or held a particular position at the time of committing the crime in the organizations specified in Part 2 of Article 50 of the Criminal Code.
The act provided for in Part 1 of Article 370 of the Criminal Code is classified as a minor offence.
The acts provided for in Parts 2-1 and 3 of Article 370 of the Criminal Code are classified as offences of medium gravity.
The act provided for in Part 4 of Article 370 of the Criminal Code is classified as a serious offence.
Commentary to the Criminal Code of the Republic of Kazakhstan (2021), by Isidor Shamilovich Borchashvili, Honoured 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, Honoured Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.
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