Commentary on Article 452. Inaction of Authority under the Criminal Code of the Republic of Kazakhstan

1. Inaction of authority, that is, failure by a superior 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, if this results in a substantial violation of the rights and legitimate interests of citizens or organizations, or of the interests of society or the State protected by law, —

shall be punishable by a fine of up to three thousand monthly calculation indices, or corrective labor in the same amount, or restriction of liberty for a term of up to three years, or imprisonment for the same term, with confiscation of property and lifelong deprivation of the right to hold certain positions or engage in certain activities.

2. The same act, if it entails grave consequences, —

shall be punishable by imprisonment for a term of four to eight years, with confiscation of property and lifelong deprivation of the right to hold certain positions or engage in certain activities.

3. The acts provided for in Parts One or Two of this Article, committed in a combat situation, —

shall be punishable by imprisonment for a term of five to ten years, 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 or Two of this Article, committed during wartime, —

shall be punishable by imprisonment for a term of ten to twenty years, with confiscation of property and lifelong deprivation of the right to hold certain positions or engage in certain activities.

The public danger of inaction of authority is determined by the fact that, as a result of a superior's or official's failure to perform their duties, not only the interests of military service and military command bodies are substantially violated, but also the rights and legitimate interests of citizens, organizations, society and the State. This thereby causes damage to the interests of ensuring the combat readiness of troops and results in material harm to the State.

The act provided for in the Article under consideration is, in accordance with subparagraph 29) of Article 3 of the Criminal Code, a corruption-related criminal offense. In its legal analysis, it is necessary to apply the provisions of Article 370 of the Criminal Code, “Inaction in Office.”

The object of the criminal offense commented on herein is the normal functioning of military command bodies, as well as the established procedure for the performance of official functions by military commanders and all military officials in the Armed Forces and other troops and military formations, which serves the interests of military service and maintaining the constant combat readiness of troops. Additional objects may include rights and freedoms protected by law, as well as the interests of society and the State.

The objective element is expressed in inaction of authority, that is, the failure of a superior or 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, if this results in a substantial violation of the rights and legitimate interests of citizens or organizations, or of the interests of society or the State protected by law.

Inaction of authority constitutes the intentional failure of a superior or military official to perform actions that they are required to perform by virtue of their military service duties.

Military regulations require every superior or official to make full use of the authority granted to them in the interests of military service, for the purpose of improving the combat capability of the unit (subunit) entrusted to them and ensuring strict observance of discipline and order.

The unlawful inaction of a superior or official, including their failure to take measures that they were obliged to take in the given circumstances to prevent socially dangerous consequences, may cause significant harm to military service.

For example, if a sergeant sees that, during the transportation of a unit's property, a subordinate is stealing combat ammunition and selling it to an outsider, but fails to stop these actions, as a result of which the ammunition is lost, the sergeant must bear criminal liability for inaction of authority.

In order to establish the fact that a superior or official has violated their powers, the court must examine the regulatory legal acts governing the rights and duties of these officials under the conditions of military service (regulations, manuals, instructions, orders and other regulatory legal documents).

It should be noted that criminal liability under Article 452 of the Criminal Code arises only in cases where the act is committed for the purpose of obtaining benefits and advantages for oneself or other persons or organizations, or causing harm to other persons or organizations, if this results in a substantial violation of the rights and legitimate interests of citizens or organizations, or of the interests of society or the State protected by law. For their definitions, see the commentary to Article 450 of the Criminal Code.

In each specific case, it is necessary to establish whether the performance of the actions that were not carried out fell within the competence of the particular superior or official, and whether they had the actual ability to perform them.

Inaction differs from abuse of authority in that it is possible only within the sphere of a superior's authority-related functions and only in the form of failure to perform an action that they were required to perform by virtue of their official duties.

According to paragraph 27 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan “On Judicial Practice in Cases Involving Military Criminal Offenses,” where military officials cause minor or moderate bodily harm while committing criminal offenses provided for in Part One of Articles 450, 451 and 452 of the Criminal Code, additional qualification under the articles concerning crimes against the person is not required.

By its legal structure, the corpus delicti is material. Inaction is deemed completed from the moment a substantial violation of the rights and legitimate interests of citizens or organizations, or of the interests of society or the State protected by law, occurs.

The subjective element of the criminal offense under consideration is characterized by direct or indirect intent, which distinguishes it from negligent performance of official duties (Article 453 of the Criminal Code), which is committed through negligence.

The person is aware of the public danger of their inaction, foresees the possibility or inevitability of socially dangerous consequences and desires the occurrence of such consequences (in the case of direct intent), or, while not desiring them, consciously allows them to occur or is indifferent to them (in the case of indirect intent).

Motives and purpose do not affect the legal classification of the offense but are taken into account by the court when imposing punishment.

The subject is a superior or official, the definitions of which are provided in the commentary to Article 450 of the Criminal Code.

Part Two of Article 452 of the Criminal Code provides for inaction of authority resulting in grave consequences as an aggravating qualifying element. The definition of such consequences is provided in the commentary to Part Two of Article 437, Part Two of Article 450 and Article 451 of the Criminal Code.

At the same time, it should be borne in mind that the infliction of grievous bodily harm is covered by Part Two of the Article under consideration, and additional qualification under Part One of Article 106 of the Criminal Code is not required. However, if the inaction of authority results in consequences provided for in Parts Two and Three of Article 106 of the Criminal Code, qualification under the aggregate of criminal offenses is necessary.

Part Three of Article 452 of the Criminal Code considers the commission, in a combat situation, of an act provided for in Parts One or Two of this Article to be a particularly aggravating qualifying element, while Part Four provides for the commission of such an act during wartime. Definitions of these terms are provided in the commentary to Parts Three and Four of Article 437 of the Criminal Code.

The act provided for in Part One of Article 452 of the Criminal Code is classified as a minor criminal offense.

The act provided for in Part Two of Article 452 of the Criminal Code is classified as a serious criminal offense.

The acts provided for in Parts Three and Four of Article 452 of the Criminal Code are classified as particularly serious criminal offenses.

Commentary (2021) on 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 of the Republic of Kazakhstan, and Honored Worker of the Ministry of Internal Affairs of the Republic of Kazakhstan.

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