Experts discussed solutions to address criminal infringements of freedom of business
"In the last 4 years, the registration of criminal cases against entrepreneurs has been reduced fivefold owing to legal and organizational efforts. The use of arrest has been minimized, administrative and criminal legislation has been humanized, and control and supervision functions have been reduced by almost 3 times. At the same time, the lack of practice of criminal prosecution for illegal obstruction of business activity limits the effectiveness of state policy to support business in the country," Kairbek Suleimenov said.
At the beginning of 2019, President of Kazakhstan emphasized in his State of the Nation Address: "...any attempts to hinder the development of business, especially small and medium-sized ones, should be considered crimes against the state. In this regard, additional legislative measures are needed. Parliament and the Government should propose a solution to this problem".
At the same time, as it was pointed out during the discussion, for the last 4 years 23 crimes were registered for committing crimes under Article 365 of the Criminal Code. 16 of them were sent to the court, 5 crimes were terminated, nobody was convicted, 2 crimes were interrupted.
Since the introduction of the new Criminal Code, no official has been prosecuted by the court. This is since criminal liability for a criminal violation of the rights of entrepreneurs has systemic shortcomings that limit its application in practice. This is a lack of specification of criminal acts of the guilty persons, which creates barriers in the application of this norm in practice.
According to the Atameken NCE RK, there is a need to introduce a separate chapter in the Criminal Code containing a list of criminal acts restricting entrepreneurial activity.
The experience of Uzbekistan was presented, where the Criminal Code provides for a separate chapter 13.1 "Crimes related to obstruction, illegal interference in business activities and other crimes that infringe on the rights and legitimate interests of economic entities". It does not have a separate composition to prevent business activities. At the same time, the legislator has united all property, economic and corruption crimes that infringe on the rights and legitimate interests of entrepreneurs.
Over the past 25 years, an independent type of crime has been formed - a crime against the interests of businesses with its specific features and properties, Kairbek Suleimenov added. This type of crime is relatively mass, historically volatile and socio-legal.
In this regard, the members of the Council on Protection of Entrepreneurs’ Rights and Counteraction of Corruption consider it necessary to recognize that the criminal liability established by article 365 of the Criminal Code of the Republic of Kazakhstan for the obstruction of legitimate activities of entrepreneurs does not provide for all forms of criminal restrictions on business activity, which limits its application in practice.
The Council will recommend that the Ministry of Justice, together with the General Prosecutor's Office, develop a separate chapter in the Criminal Code containing articles on liability for the obstruction of legitimate business activities.
"Observance of entrepreneurs' rights during the pre-trial investigation as well as during court proceedings in criminal cases is a serious problem in the sphere of protection of rights and interests of business entities," the Chairman of the Council said.
However, the legislation does not allow the Chamber of Entrepreneurs and the Office of the Commissioner for the Protection of the Rights of Entrepreneurs of Kazakhstan to defend the interests of business entities in criminal proceedings.
The Council recommended initiating amendments to the Criminal Procedure Code on the right to participate in the protection of rights and interests of entrepreneurs at the stages of pre-trial proceedings and consideration of criminal cases by the courts of experts of Atameken and Business Ombudsman.
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