Commentary on Article 401 of the Criminal Code of the Republic of Kazakhstan: Leading a Prohibited Strike, Obstructing the Operations of an Organization During Wartime or a State of Emergency
1. Leading a prohibited strike during wartime or a state of emergency, as well as obstructing the operations of an organization under such circumstances —
shall be punishable by a fine of up to two thousand monthly calculation indices, or corrective labour 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.
The public danger of the crime provided for in Article 401 of the Criminal Code lies in the fact that it encroaches upon the normal functioning of governing bodies under special circumstances. Illegal strikes and obstruction of the operations of organizations may result in disturbances of public order, damage to the property of an organization, jeopardize the safety of employees, as well as disrupt the operation of machinery and equipment whose shutdown poses an immediate threat to human life and health.
The object of the crime under consideration is the public relations ensuring the functioning of governing bodies (the State and its apparatus: legislative and executive authorities, as well as officials).
The objective aspect of the crime provided for in Article 401 of the Criminal Code consists of leading a prohibited strike during wartime or a state of emergency, as well as obstructing the operations of an organization under such circumstances.
In accordance with paragraph 2 of Article 162 of the Labour Code of the Republic of Kazakhstan dated 23 November 2015, a strike is defined as the complete or partial cessation of work for the purpose of satisfying the socio-economic and professional demands of employees in a collective labour dispute with an employer.
Leading a strike should be understood as organizational activity that may be expressed through various actions, such as gathering people, assigning tasks to them, inciting them, or directing the actions performed by a group.
In accordance with Article 171 of the Labour Code of the Republic of Kazakhstan, employees may decide to hold a strike if the collective labour dispute has not been resolved through conciliation procedures, as well as in cases where the employer evades conciliation procedures or fails to comply with an agreement reached during the resolution of a collective labour dispute.
The decision to hold a strike shall be adopted at a meeting (conference) of employees (their representatives).
A meeting of employees shall be deemed competent if more than half of the total number of employees of the organization are present.
A conference shall be deemed competent if at least two-thirds of the delegates elected by the employees in accordance with the relevant protocol decisions are present.
Decisions of a meeting (conference) of employees shall be deemed adopted by a majority vote of the participants. If it is impossible to hold a meeting (conference) of employees, the employees' representative body shall have the right to approve its decision by collecting signatures in support of the strike from more than half of the employees.
The strike shall be led by a body authorized by the employees (their representatives) (the strike committee). If a strike is declared by employees (their representatives) of several employers with identical demands, it may be led by a joint body formed from an equal number of representatives of those employees.
Participation in a strike is voluntary. No one may be compelled to participate in or refrain from participating in a strike.
Persons who compel employees to participate in or refrain from participating in a strike shall be held liable in accordance with the procedure established by the laws of the Republic of Kazakhstan.
The employer, state bodies, and the body leading the strike are obliged to take all measures within their power to ensure public order, the preservation of the organization's property, the safety of employees, as well as the operation of machinery and equipment whose shutdown poses an immediate threat to human life and health during the strike.
The organization or participation in strikes may not be regarded as a violation of an employee's labour discipline and may not entail the application of disciplinary measures provided for by the Labour Code.
During a strike, an employee shall retain their workplace (position), the right to receive social benefits for temporary incapacity for work, their length of service, and shall also be guaranteed other rights arising from employment relations.
Wages shall not be retained for employees participating in a strike for the duration of the strike, except in cases where the strike is held due to non-payment or delayed payment of wages.
Thus, prohibited strikes are illegal strikes, that is, strikes prohibited at the legislative level.
In accordance with Article 176 of the Labour Code:
“Strikes shall be declared illegal:
- during periods of the introduction of martial law or a state of emergency, or special measures in accordance with the legislation of the Republic of Kazakhstan on the state of emergency; in the bodies and organizations of the Armed Forces of the Republic of Kazakhstan, other military formations and organizations responsible for ensuring the country's defence, state security, emergency rescue, search and rescue, fire prevention and firefighting operations, and the prevention or elimination of emergency situations; in special state and law enforcement agencies; and at emergency and urgent medical care stations;
- in organizations directly involved in ensuring the vital needs of the population in the fields of electricity supply, heating supply, water supply and wastewater disposal, gas supply, aviation, railway, road, public and water transport, communications, and healthcare, if the minimum list and volume of relevant services necessary for the population, determined on the basis of a prior agreement between employee representatives and the local executive body, are not maintained;
2-1) at hazardous production facilities where the suspension of operations is associated with severe and dangerous consequences, if the uninterrupted operation of the main equipment and mechanisms is not ensured;
- if declared without observing the time limits, procedures and requirements stipulated by the Labour Code;
- in cases where this creates a real threat to human life and health;
- in other cases provided for by the laws of the Republic of Kazakhstan.”
If any of the above grounds exist, the prosecutor shall have the right to suspend the strike until the court adopts the relevant decision.
A decision declaring a strike illegal shall be adopted by a court in accordance with the laws of the Republic of Kazakhstan upon an application submitted by the employer or the prosecutor.
The court decision shall be communicated to employees through the body leading the strike, which is obliged to immediately inform the strike participants of the court's decision. If there is no body leading the strike, the employer shall inform the employees directly.
The employer shall ensure that the text of the court decision is posted in places accessible for public viewing.
A court decision declaring a strike illegal shall be subject to immediate enforcement, and the strike shall be terminated.
If an immediate threat to human life and health arises, the prosecutor or the court shall have the right to suspend the strike before the relevant decision is adopted.
Persons who incite others to continue participating in a strike declared illegal by a court shall be held liable in accordance with the procedure established by the laws of the Republic of Kazakhstan.
If a court declares a strike illegal, the employer may impose disciplinary liability on employees who participated in organizing or conducting the strike.
According to Article 28 of the Law of the Republic of Kazakhstan dated 7 January 2005, “On Defence and the Armed Forces of the Republic of Kazakhstan”, a state of war shall be declared by the Parliament of the Republic of Kazakhstan in the event of an armed attack on the Republic of Kazakhstan by another state (a group or coalition of states), as well as in cases provided for by international treaties ratified by the Republic of Kazakhstan.
Wartime begins from the moment a state of war is declared or hostilities actually commence and ends from the moment the termination of hostilities is announced, but not before their actual cessation. Thus, wartime is the period beginning from the moment a state of war is declared or hostilities actually commence and ending from the moment the termination of hostilities is announced, but not before their actual cessation (Article 1 of the aforementioned Law).
The concept, characteristics, conditions and procedure for declaring a state of emergency are established in the Law of the Republic of Kazakhstan dated 8 February 2003, “On the State of Emergency”, and are examined in detail in the commentary to Article 379 of the Criminal Code.
An organization is understood as a group of people working together under the leadership of a manager and carrying out certain plans (as a rule, legal entities).
At the same time, there are organizations operating without the establishment of a legal entity. One of the most common types of such organizations is public associations.
Taking into account the use of the term “organizations” in the disposition of Article 401 of the Criminal Code without any explanations or clarifications, as well as the absence of any interpretation of this concept in regulatory resolutions of the Supreme Court, the literal interpretation of the term “organization” should be followed. Accordingly, the term “organizations” enshrined in Article 401 of the Criminal Code should be understood to include both organizations established and operating as legal entities and organizations operating without the establishment of a legal entity.
Thus, obstructing the operations of an organization during wartime or a state of emergency should be understood as active actions aimed at preventing organizations from operating or bringing their operations to a halt.
The composition of the crime under consideration is formal in its structure; therefore, the mere fact of leading a prohibited strike during wartime or a state of emergency, or obstructing the operations of an organization under such circumstances, is sufficient to hold a person criminally liable. The crime shall be deemed completed from the moment any of the actions specified in the disposition of the article is performed.
The subjective aspect of the crime under consideration is characterized by direct intent. The perpetrator is aware that they are leading a prohibited strike during wartime or a state of emergency, or obstructing the operations of an organization under such circumstances, and desires to do so.
The motive and purpose do not affect the legal classification of the act under consideration; however, they are taken into account when determining the punishment.
The subject of the offence under consideration is a sane individual who has reached the age of 16.
The act provided for in Article 401 of the Criminal Code belongs to the category of minor offences.
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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