Commentary on Article 402. Actions Provoking the Continuation of Participation in a Strike Declared Illegal by a Court of the Criminal Code of the Republic of Kazakhstan

1. Calls to continue participating in a strike declared illegal by a court, made publicly or through the use of mass media or telecommunications networks, as well as bribery of employees for this purpose –

shall be punishable by a fine in an amount of up to two hundred monthly calculation indices, or corrective labor in the same amount, or community service for a period of up to two hundred hours, or arrest for a period of up to fifty days.

2. The same acts, if they cause substantial harm to the rights and legitimate interests of individuals or organizations, or to the legally protected interests of society or the state, or result in mass riots –

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 five hundred hours, or restriction of liberty for a period of up to two years, or imprisonment for the same period, with deprivation of the right to hold certain positions or engage in certain activities for a period of up to two years, or without such deprivation.

The public danger of the criminal offense provided for in Article 402 of the Criminal Code (Part 1 — a criminal misdemeanor, Part 2 — a crime) lies in the fact that it encroaches upon the normal functioning of governing bodies. Actions provoking the continuation of participation in a strike declared illegal by a court may escalate into mass riots, which, in turn, may paralyze the activities of state authorities and administrative bodies, cause large-scale violations of public order, human casualties, and serious economic damage to the state, society, and individuals.

The object of the criminal offense 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 element of the criminal offense provided for in Article 402 of the Criminal Code consists of calling for the continuation of participation in a strike declared illegal by a court, where such calls are made publicly or through the use of mass media or telecommunications networks, as well as bribing employees for this purpose.

A call is a slogan or an appeal expressed in a concise form and conveying a guiding idea.

Participation is joint activity, cooperation in the joint performance of something.

In accordance with paragraph 2 of Article 162 of the Labor Code of the Republic of Kazakhstan, a strike is the complete or partial cessation of work for the purpose of satisfying the socio-economic and professional demands of employees in a collective labor dispute with an employer.

An obligatory condition for criminal liability under Article 402 of the Criminal Code is that the strike must have been declared illegal by a court.

Article 176 of the Labor Code of the Republic of Kazakhstan specifies the conditions under which strikes are declared illegal (for further details, see the commentary to Article 401 of the Criminal Code).

A call to continue participating in a strike should be understood as an intention, firstly, to draw attention to one's own presence and, secondly, to attract the attention of others by conveying to them the objective of continuing their participation in an illegal strike.

The act under consideration may be committed by any means: verbally, in writing, through the use of mass media, or by means of actions.

Publicity also includes the use of mass media and information and communication networks, for example, computer equipment and other means.

A public call to continue participating in an illegal strike, made through the use of mass media or telecommunications networks, constitutes a public appeal to employees to engage in joint activities consisting of the complete or partial cessation of work, through the use of printed publications, television and radio channels, Internet websites, messengers, etc.

Bribery of employees for the purpose of calling for the continuation of participation in a strike means the transfer, personally or through an intermediary, of any property valuables or the provision of property-related services for the purpose of influencing employees to continue participating in an illegal strike.

The composition of the criminal misdemeanor provided for in Part 1 of Article 402 of the Criminal Code is formal in nature. The act shall be deemed completed from the moment a call to continue participating in an illegal strike is made or employees are bribed for the same purpose.

The subjective element of the criminal misdemeanor provided for in Part 1 of Article 402 of the Criminal Code is characterized by direct intent. The offender is aware that they are publicly or through the use of mass media or information and communication networks calling for the continuation of participation in a strike declared illegal by a court, or bribing employees for this purpose, and wishes to commit these acts.

The motive and purpose do not affect the legal qualification of the act under consideration; however, they are taken into account by the court when imposing punishment.

The subject of the criminal offense under consideration is a sane natural person who has reached the age of sixteen.

Part 2 of Article 402 of the Criminal Code provides for criminal liability as a qualifying circumstance for calls to continue participating in a strike declared illegal by a court, made publicly or through the use of mass media or telecommunications networks, as well as bribery of employees for this purpose, where such acts cause substantial harm to the rights and legitimate interests of individuals or organizations, or to the legally protected interests of society or the state, or result in mass riots.

Thus, the composition of the crime provided for in Part 2 of Article 402 of the Criminal Code is material in nature. In this regard, the objective element of this act includes three mandatory features: firstly, a socially dangerous act consisting of calling for the continuation of participation in a strike declared illegal by a court, made publicly or through the use of mass media or telecommunications networks, as well as bribing employees for this purpose; secondly, socially dangerous consequences expressed in causing substantial harm to the rights and legitimate interests of individuals or organizations, or to the legally protected interests of society or the state, or in mass riots; and thirdly, a causal relationship between the violations and the consequences specified in the law. Accordingly, the act shall be deemed completed from the moment the socially dangerous consequences occur.

The concept of substantial harm is provided in subparagraph 14) of Article 3 of the Criminal Code.

The infliction of substantial harm is an evaluative category determined by the investigative authorities, taking into account the factual circumstances of the committed act. Such harm may be caused to both individuals and legal entities. At the same time, the legality of the offender's actions may also be challenged in the interests of third parties.

Depending on the nature of the unlawful consequences, substantial harm may be recognized as property damage in the form of direct actual loss or lost profit, or a violation of the legitimate rights and interests of individuals. Where the actions of the offender result in substantial harm to the rights or legitimate interests of individuals or organizations, or to the legally protected interests of society or the state, such harm may be expressed in the infliction of significant material damage, violations of citizens' constitutional rights to freedom of movement, use of residential premises, etc.

Mass riots are acts committed by a large group of people (a crowd) that constitute an encroachment upon public safety and are accompanied by violence against people, pogroms, arson, destruction of property, the use of firearms, explosives or explosive devices, and armed resistance to representatives of the authorities.

Mass riots are aimed at uniting and directing a crowd. The public danger of mass riots lies in their ability to paralyze the activities of state authorities and administrative bodies, lead to mass violations of public order, threaten public safety, cause human casualties, and inflict serious economic damage on the state, society, or an individual.

The subjective element of the crime provided for in Part 2 of Article 402 of the Criminal Code is also characterized by an intentional form of guilt. In this case, intent may be either direct or indirect. The offender is aware that they are publicly or through the use of mass media or telecommunications networks calling for the continuation of participation in a strike declared illegal by a court, or bribing employees for this purpose, foresees that their actions may cause substantial harm to the rights and legitimate interests of individuals or organizations, or to the legally protected interests of society or the state, or may result in mass riots, and either desires the occurrence of such consequences, consciously allows them to occur, or is indifferent to their occurrence.

The act provided for in Part 1 of Article 402 of the Criminal Code is classified as a criminal misdemeanor.

The act provided for in Part 2 of Article 402 of the Criminal Code is classified as a minor crime.

Commentary to the Criminal Code of the Republic of Kazakhstan, 2021, by Isidor Shamilovich Borchashvili, Honored Figure of Kazakhstan, Doctor of Law, Professor, Academician of the National Academy of Natural Sciences of Kazakhstan, 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, Honored Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.

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