Commentary on Article 390. Unauthorized Assumption of the Title of a Representative of Authority or an Official Holding a Responsible Public Office of the Criminal Code of the Republic of Kazakhstan

1. Unauthorized assumption of the title of a representative of authority or an official holding a public office for the purpose of obtaining powers of authority —

shall be punishable by a fine in an amount of up to eighty monthly calculation indices, or correctional labor in the same amount, or engagement in community service for a period of up to eighty hours, or arrest for a period of up to twenty days.

2. Unauthorized assumption of the title of a representative of authority or an official holding a responsible public office, where such conduct is associated with the commission of a criminal offense on that basis, —

shall be punishable by a fine in an amount of up to two thousand monthly calculation indices, or correctional labor in the same amount, or engagement in community service for a period of up to six hundred hours, or restriction of liberty for a period of up to two years, or deprivation of liberty for the same period.

3. Unauthorized assumption of the title of an official holding an office established by the Constitution of the Republic of Kazakhstan for the purpose of obtaining powers of authority —

shall be punishable by a fine in an amount of up to five thousand monthly calculation indices, or correctional labor in the same amount, or engagement in 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 deprivation of liberty for the same period.

The public danger of the criminal offense provided for in Article 390 of the Criminal Code (Part 1 — a criminal misdemeanor; Parts 2 and 3 — crimes) lies in the fact that it encroaches upon the activities of state bodies and discredits their authority. Furthermore, the commission of new criminal offenses as a result of the assumption of the title of a representative of authority or an official holding a public office cannot be ruled out.

The object of the criminal offense under consideration is the social relations governing the activities of administrative bodies.

The objective element of the act provided for in Article 390 of the Criminal Code consists in the unauthorized assumption of the title of a representative of authority or an official holding a public office for the purpose of obtaining powers of authority.

Pursuant to subparagraph 9) of Article 3 of the Criminal Code, a representative of authority is a person in public service who, in accordance with the procedure established by the legislation of the Republic of Kazakhstan, is vested with administrative powers in relation to persons who are not subordinate to them in the course of their official duties, including an employee of a law enforcement or special state body, an employee of a military police body, or a military servicemember participating in ensuring public order.

The assumption of the title of a representative of authority should also be understood to include the assumption of military and special ranks awarded to certain categories of officials (military servicemembers, police officers, prosecutors, etc.).

The status of a representative of authority is primarily associated with powers of authority. Powers of authority are understood as the right to make decisions and issue demands that are binding upon citizens, institutions and organizations, regardless of their departmental affiliation or subordination. The functions of a representative of authority are primarily characteristic of officials.

Unauthorized assumption of the title of a representative of authority or an official holding a public office should be understood as unlawful actions whereby the guilty person, through deception, passes themselves off as a representative of authority or as an official holding a responsible public office, unlawfully (in violation of the established procedure and in the absence of legal grounds) assumes such powers or titles and misleads others regarding their actual status.

The form in which this is presented may vary: presenting forged documents, using a uniform, concealing one's actual status in cases where other persons mistakenly perceive the guilty person as an official, and similar actions.

It should be noted that the unauthorized assumption of a particular specialty or profession, for example, that of a doctor, lawyer, teacher, engineer, etc., does not constitute the elements of the criminal misdemeanor provided for in Part 1 of Article 390 of the Criminal Code.

If the unauthorized assumption of the title of a representative of authority or an official was not intended to obtain powers of authority (for example, as a joke), or was associated with the commission of an act beneficial to society (for example, a person introduces themselves as a police officer in order to stop the unlawful actions of another person or detain an offender), then the elements of the criminal offense provided for in Part 1 of Article 390 of the Criminal Code are absent.

By its legal structure, the elements of the criminal misdemeanor under consideration are formal. Therefore, in order to bring a person to criminal liability, the mere fact of the unauthorized assumption of the title of a representative of authority or an official holding a public office is sufficient.

The subjective element of the act under consideration is characterized by direct intent. The guilty person is aware that they are unlawfully assuming the title of a representative of authority or an official holding a public office for the purpose of obtaining powers of authority and desires to do so. At the same time, the act under consideration has a mandatory subjective element (a specific purpose) — obtaining powers of authority.

The motives may vary and must be taken into account when imposing punishment.

The subject of the act under analysis is a sane individual who has attained the age of sixteen.

If an official or a representative of authority passes themselves off as an official or representative of authority possessing broader powers or a higher rank, such actions should be classified under Article 362 of the Criminal Code, which provides for criminal liability for exceeding authority or official powers.

Part 2 of Article 390 of the Criminal Code provides, as an aggravating element, for the unauthorized assumption of the title of a representative of authority or an official holding a responsible public office, where such conduct is associated with the commission of a crime on that basis.

Unauthorized assumption of the title of a representative of authority or an official holding a responsible public office should be understood as unlawful actions whereby the guilty person, through deception, passes themselves off as a representative of authority or an official holding a responsible public office for the purpose of committing another crime.

Pursuant to Part 2 of Article 10 of the Criminal Code, a crime is a culpably committed socially dangerous act (action or omission) prohibited by the Criminal Code under threat of punishment in the form of a fine, correctional labor, engagement in community service, restriction of liberty, deprivation of liberty or the death penalty. At the same time, it is necessary to establish a causal relationship between the assumption of the title and the crime committed on that basis.

Depending on the socially dangerous consequences that have occurred, the actions of the guilty person in such cases should be classified under the aggregate of criminal offenses: under Part 2 of Article 390 of the Criminal Code and the relevant article of the Criminal Code of the Republic of Kazakhstan.

The elements of the crime provided for in Part 2 of Article 390 of the Criminal Code are considered complete from the moment of the unauthorized assumption of the title of a representative of authority or an official holding a responsible public office and the commission of a crime on that basis.

Part 3 of this Article provides for criminal liability for the unauthorized assumption of the title of an official holding an office established by the Constitution of the Republic of Kazakhstan for the purpose of obtaining powers of authority. The concept of an official holding an office established by the Constitution of the Republic of Kazakhstan derives from the concept of an official holding a responsible public office. Consequently, such positions include the offices of the President of the Republic of Kazakhstan, the Prime Minister, a Member of Parliament, a member of the Government, the Chairperson and a member of the Constitutional Council, the chairperson of a court, a judge, a prosecutor, a maslikhat deputy and an akim.

The unauthorized assumption of the title of a representative of authority or an official holding a responsible public office differs from the criminal offense provided for in Article 389 of the Criminal Code, entitled “Arbitrariness,” in that, when unlawfully assuming such a title, the guilty person does not independently exercise their actual or alleged right; on the contrary, they commit a crime while being aware that they have no right whatsoever to do so.

The act provided for in Part 1 of Article 390 of the Criminal Code belongs to the category of criminal misdemeanors.

The act provided for in Part 2 of Article 390 of the Criminal Code belongs to the category of crimes of minor gravity.

The act provided for in Part 3 of Article 390 of the Criminal Code belongs to the category of crimes of medium gravity.

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 the reform of the law enforcement system under the Security Council of the Republic of Kazakhstan, and Honored Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.

Constitution Law Code Regulatory Resolution Order Decision Resolution Advocate Almaty Lawyer Legal Services Legal Consultation Civil Criminal Administrative Cases and Disputes Defense Arbitration Legal Company of Kazakhstan Law Office Court Cases Declaration Resolution Order Resolution Decision Report Conclusion Application Conclusion Convention Contract Memorandum Methodology Norms Note Rules Program Charter Charter Article Commentary Resolution Regulations Protocol Draft Program Rules Messages