Course of lecture materials on the general part of criminal law. Educational manual. 9786010450639

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Kazakh National University of Al-Farabi

R. E. Dzansarayeva, SH. B. Malikova

Course of Lecture Materials on the General part of Criminal Law Educational manual

Almaty «Kazakh University» 2013

UDK 343.2/7(075.8) BBK 67.408 я 73 D 40 Recommended for publication by the Science Committee of Law faculty and RPC KazNY of аl-Farabi and Editorial and Publishing Council of KazNU Reviewers: Jurisprudence Doctor, Professor G.R. Rystemova Candidate of jurisprudence science, professor G.I. Baimyrzin

Dzansarayeva R.E., Malikova SH.B. D 40 Corse of lectures on the general part of criminal law: educational manual. ‒ Almaty: Kazakh University, 2013. ‒ 118 р. ISBN 978–601–04–5063–9 Study course materials based on the Criminal Law codex of RK and the content explains large portions of the current legislation. The course contains short lectures and test tasks that are designed for the control of the quality f the knowledge that students receive during the course Criminal Law. For the instructors, graduate students and students of law universities and faculties.

UDK 343.2/7(075.8) BBK 67.408 я 73

isbN 978–601–04–5063–9

© Dzansarayeva R.E., Malikova SH.B., 2013 © KazNU al-Farabi, 2013

FOREWORD Criminal law is one of the educational disciplines that is a part of the law education The study of the criminal law is designed to form the knowledge of theoretical skills that are based on the legislation. The course is generalizing the judicial, prosecutorial and investigative practice that form skills that can be applied in the field of criminal law in certain circumstances Actuality of the skills and knowledge in the current course is generated by the war on crime in which the criminal law plays a role of the main weapon of state law enforcement organs that are countering the criminal activity The deep study of criminal legislation is a needed condition for the law enforcement Criminal law is divided into two parts: general and special General part includes contents and measures of punishment for the crimes. The study is designed to form correct qualification of crimes that is needed for correct function of the legislation that is designed to fight the criminal activity. This is important part of the legislation that must be understood correctly and correct policies of the criminal politic , knowledge of the norms of criminal liability, the limits of the specialized types of punishment , the order of appointment and questions of the criminal punishment The study of General part of criminal legislation is designed to give deep knowledge to the students of the norms of criminal legislation, the skills to properly apply the law, which must provide high quality of the preparation of lawyers The study of the general part of Criminal law must be proceeded by the disciplines of state and law theory in which student s must acquire basic notions and institutes; history of state and law; logic. 3

Criminal law is tightly connected with criminal-procedural law, especially with theory of punishment, and other its divisions that are connected the subject and methods of criminal law, especially with divisions that are studying the execution of the sentence and exemption from the criminal liability. Criminal law is tightly connected to the criminology science that is studying the dynamics and causation of criminal activity. Judicial statistics studies the collective side of crimes. The successful assimilation of the course of Genral part of criminal law is designed to give high quality knowledge of practice of application of criminal law norms. The course is designed the way that are large role is given to the explanation that are provided in the normative acts of Supreme Court of RK.

Chapter 1 Concept, tasks, principles of Criminal Law

1. Concept, subject, method of Criminal Law 2. Tasks of Criminal Law 3. Principles of Criminal Law 4. Interrelation of the Criminal Law with other branches of the law 5. Science of Criminal Law

1. Concept, subject, method of Criminal Law The concept of “criminal law” is used in three meanings. Firstly,it is used as a branch of the legislation; as a branch of the Law, thirdly as a science and academic discipline. Criminal Law represents as a branch of legislation a system of rules adopted by the supreme body of state power and defining the base and general provisions of criminal responsibility, types of penalties and conditions for exemption from responsibility and punishment. As a branch of law, Criminal Law includes not only the Criminal Legislation, but also criminal-legal relations, connected with law making and law enforcement. As a science, criminal law is a system of views about bases and principles of criminal responsibility, signs of socially dangerous acts, content and effectiveness of punishment and other issues with a view to subsequent use of conclusions and proposals in the law making and law enforcement. As an academic discipline the Criminal Law is an independent training course, taught in educational institutions and faculties on the basis of existing legislation and law enforcement practice taking into account achievements of the science of Criminal Law. Like any independent branch of Law, the criminal law has its own subject and methods of legal regulation. The subject of Criminal Law is social relations arising in connection with the commission of a socially dangerous act. 5

Subject of legal regulation is consisted of three types of criminallegal relations. 1. Protective legal relations arise concerning the commission of crime. These legal relationsare imperative, as a dominant position here belongs to state body that gives legal assessment of actions of a person and has the right of enforcement of last. 2. General preventive legal relations connected with the holdup of faces from committing crimes. This holdup is provided by threat of application of measures of criminal-legal influence. 3. Regulatory legal relations occur in cases where executed action by person formally falls under the signs of crime, but is not considered like a crime due to certain circumstances the law. Criminal Law in a number of cases gives to person a rightfor harm, which in other circumstances would be considered a crime. For example, injury to the attacker in self-defense, emergency or other circumstances precludes a criminality. Method of legal regulation is anaccumulation of certain legal means and methods by which branch of law affects the social relations that are its subject. Methods of criminal law areinseparably linked with the subject of the Criminal Law. They are consisted of: – imposition of a ban on execution of socially dangerous acts by indefinite number of faces; – establishment of criminal responsibility of physical body for any crime commission; – definition of the limits of allowable harm, externally falling under the definition of a criminal, but actually is not considered as a crime. 2. Tasks of Criminal Law Content and directivity of tasks of Criminal Law are based primarily on the provisions of Art. 1 of the Constitution of the Republic of Kazakhstan, which declared a human, rights and freedom as a highest value;and indicated that recognition, observance and protection of the rights and freedom of human and citizen are liabilities of the State. Therefore the protection of rights and freedom of human and citizen is the main task of the Criminal Code of the Republic of Kazakhstan. 6

No wonder that the special part of the Criminal Code begins with main crimes against a person (Chapter 1 of the Criminal Code of the Republic of Kazakhstan). The Criminal Law has taken into account qualitative changes that have occurred recently in our country, and reflected values hierarchy adopted in developed democracy countries: firstly, individual’s interests only then the society and the state. In addition to identity security the task of the Criminal Code is security of all forms of ownership. As against from previous Criminal Legislation, the Criminal Code provides an equal protection of all forms of ownership, without singling out a specific section of the crime against a state property. Among the most important tasks protected by the criminal law means, there is included public order and public safety, as well as a constitutional system of the Republic of Kazakhstan. Besides environment and security of mankind are under protection of the Criminal Law. So, we can say that the main task of the criminal law isprotective. No less important task of the Criminal Law is to prevent the commission of crimes. It means keeping people from committing crimes by the threat of punishment. It is done by means of establishment of the criminal law prohibitions, violation of which involves the application of penalties under Criminal Law. The establishment of such ban imposes on citizens the duty to refrain from committing a crime, therefore, carries the warning task. In the Criminal Law there are identified two types of preventive tasks: general and private preventions. General prevention (warning) is to keep citizens from committing crimes under the influence of criminal law prohibition. Private prevention (warning) is keeping from committing new crimes by person who has committed a crime before. This object is achieved by use of such punishment for done actions, which contributes to the goals of punishment specified in part 2 of Art. 38 of the Criminal Code of the Republic of Kazakhstan. The task of preventing the commission of crimes is closely connected with the educational task (function) of the Criminal Law, because the very fact of the existence of the Criminal legislation, information about it, moreover apply of it to guilty person forms program in mind 7

of citizens to respect existing public relations in the state, holds potentially crime-prone individuals from committing socially dangerous act, brings to members of the society a confidence in the protection of their rights and freedom. A specific task is an incentive task of the Criminal Law. It plays a dual role, because on one hand, it allows citizens to cut shop the commission of a criminal actions (institutions of self-defense, detention of criminal), and on the other –do not held criminal responsibility even causing harm to legally protected interests (a reasonable risk, release of hostage, etc.). According to abovementioned analysis of tasks of the Criminal Law follows that they are highly specific. Unlike other areas of Law the Criminal Law not only regulates but protects public relations, helping to strengthen and develop them. 3. Principles of Criminal Law Principles of Criminal Law are leading provisions expressed in norms of theCriminal Law, defining content and basis of this branch of Law. The Criminal Law is based on the following principles: principle of legality, principle of equality of all citizens before the Law, principle of guilt, principle of justice, principle of humanism. Principle of legality means that criminality of the act, as well as punishability determined only by the Criminal Law. Consequently, no other laws and normative acts can determine criminal responsibility. The principle of legality also means that it is not permitted to use the criminal law by analogy. This provision is based on Article 77 of the Constitution of the Republic of Kazakhstan that states that no one can be held liable for an act which at the time of its commission is not recognized asviolation of law. Thus, the legislator excludes capability to hold anyone criminally responsible for the similar, but not directly provided in the Criminal Code violation of law, which eliminates the possibility of many abuses and arbitrariness. The principle of equality of all citizens before the law is that a person who committed a crime, will be criminally responsible, regardless of their ethnic origin, official or social status or other characteristics. 8

This principle is based also on constitutional provisions as in accordance with Art.14 of the Constitution of the Republic of Kazakhstan “all are equal before Law and Court”. In this case, a special order of attraction to the criminal responsibility of separate category of faces (judges, deputes, etc) does not contradict to this principle, because they are not be free from responsibility for their crimes. The need for a complicated procedure is explained by that that it provides a real work and independence of such faces, which fully complies with the norms accepted in the civilized countries of the world. One of the most important and specific principles of the criminal law is the principle of guilt. This principle means that a person shall be criminally responsible only for those socially dangerous acts in respect of which a certain mental attitude of a person to his deed is set, that is his quilt. Therefore, a socially dangerous act becomes a crime only when it is committed intentionally or negligently. The Law emphasizes that criminal responsibility is not admitted for innocent causing harm regardless of seriousness of consequences, that is objective imputation. The principle of justice is that the punishment and other measures of criminal-legal character, applicable to a person, should be fair, that is appropriate to the nature and degree of social danger of the crime, as well as identity of guilty person. This principle individualizes a responsibility and punishment, applicable to person. Obviously the use of the same punishment to different people, even when they commit the same crimes would be unfair. The Court must be guided not by emotions but as an objective assessment of the offense and personality of guilty person. Principle of justice is provided, inter alia, by establishment of various types of sanctions, a significant gap between their lower and upper limits, individual features of separate categories of faces having institutions of amnesty and pardon, etc. Particular importance is the position that no one can be held liable twice for the same crime. Previously the criminal legislation which was in force in our country allowed the possibility of repeated attraction to criminal responsibility regardless of whether that person has already been punished abroad. Now, however, the criminal law was complied withinternational legal acts. Principle of justice is closely related to the principle of humanity. The essence of this principle is that the criminal legislation of the Republic of Kazakhstan must ensure the security of human. Human se9

curity means first and foremost the protection of life, health, property from criminal offenses by means of establishment and application of measures of criminal-legal character. Alongside with that humanity of the criminal law is also reflected in denial and the prohibition of painful, cruel punishment and defamatory. The law specifically says that the punishment cannot be aimed at causing physical suffering or humiliation of human dignity. Principle of humanity is manifested in institutions such as probation, parole, commutation of sentence, establishment of lighter punishment to underage children. A significant limitation in application of capital punishment, which is possible now in 18 cases, of the existing Criminal Code of the Republic of Kazakhstan plays great importance for the realization of the considered principle Considered principles of Criminal Law are interrelated closely and constitute a system of principles of criminal law in total. 4. Relationship of the Criminal Law with other branches of the Law Criminal Law interacts with other branches of the Law and, in particular, with constitutional right. Primarily this relation is due to the fact that legal basis of the Criminal Legislationis Constitution of the Republic of Kazakhstan. Article 1 of the Criminal Code states that “true Code is based on the Constitution of the Republic of Kazakhstan.” Many of the provisions enshrined in the Constitution, have found a full development and concretization in articles of the Criminal Code of the Republic of Kazakhstan. Criminal Law is related to the Law of criminal procedureandcriminal-executive right, as single goal of these spheres is an anticriminal warfare. Law of criminal procedure regulates the activities of law enforcement agencies on initiation, investigation and resolution of criminal cases, that is, this branch of Law allows implementingthose provisionsin practice, which establishes Criminal Law. Criminal-Executive Law governs the terms and conditions of execution and serving of sentences designated by the court for crimes. Administrative Law is similar to the Criminal Law in its tasks, and in both cases tasks are protection of the rights, freedom and law10

ful interests of individuals and legal entities, state and society; the violation of which involves use of certain measures: punishment for a crime, or administrative penalties for administrative offenses. The similarity of these areas of Law is determined by the fact that one and the same in nature may be declared a crime or administrative offense. Delimitation of such acts is carried out not by the nature of action, but on other signs. 5. Science of Criminal Law – a collection of actual system of knowledge and understanding of the Criminal Law and its basic concepts. In contrast to the fields of the Criminal Law, the subject of which is a criminal-legalrelation, the subject of science of the Criminal Law is tostudy a Criminal Law in close connection with the practice of its application. Therefore the subject of the science of Criminal Law is primarily criminal-legal norms, that is, current criminal legislation. However, the subject of science of Criminal Law is broader than the subject of Criminal Law as a field, since it includes the study of the history of Criminal Law and legislation, as well as a study of prospects of development and improvement of the Criminal Law. Thus, the latest achievement of science of Criminal Law is development and adoption of a new Criminal Code of the Republic of Kazakhstan. Subject of science of Criminal Law also includes analysis of International Criminal Law and its place in the system of International Law and cooperation with the Russian Criminal Law. Methods of Criminal Law Science are Comparative-Legal, dialectical, historical, sociological, and statistical. Comparative – legal method is comparison, contrast of same typed legal institutions of the Criminal Law of different countries of the world. This method allows using of the benefits of foreign Criminal Law, finding the best solutions to problems; bringing together criminal laws of various countries, broadens the mind of the investigator. The dialectical method is that during the criminal – legal research there is used basic laws and concepts of philosophy. This method is used for identifying and studying such fundamental concepts of Criminal Law as a causal relationship, the necessity and chance, consciousness and will, cause and effect, and etc. 11

Historical method involves the study of Criminal Law and its institutions in their historical, temporal development. This method allows taking into account the achievements and experience, which were at the early stages of the development of Criminal Law, in particular in the pre-revolutionary period. The historical method ensures continuity in the development of Criminal Law. On the other hand, it avoids the available past failures and shortcomings. Sociological method makes it possible to analyze the Criminal legislation and its institutions in terms of their social conditioning. This method allows taking into account the specific socio-political situation in the development and improvement of the Criminal Legislation. Statistical method is necessary for timely recording of criminalization of certain phenomena, as well as strengthening ofappropriate prohibition and sanctions for its violation inCriminal Law. As a result, there are unknown until recently offenses in the Criminal Code of the Republic of Kazakhstan. The science of Criminal Law has more diverse sources than the field of Criminal Law. The source of the science of Criminal Law is legal acts firstly containing norms of Criminal Law, whichare the Constitution of the Republic of Kazakhstan and the Criminal Code of the Republic of Kazakhstan. An important source of science of Criminal Law is also the works of scientists, specialists, who study the problems of Criminal Law, its history and prospects. The source of science is the practice of implementation and application of the Criminal Law. Any scientific theory, any criminal act is learnt in the first place under real conditions of application. It is impossible to develop and study the problems of Criminal Law without analyzing the practical activities on realization of provisions of the Criminal Law. That experience shows both the strengths and weaknesses of the existing Criminal Law.

Chapter 2 Criminal Law is the only source of Criminal Right

1. Concept of Criminal Law 2. Structure of the Criminal Code 3. Operation of Criminal Law in space and time 4. Interpretation of the Criminal Law

Feature of Criminal Law is that his only source of criminal law is presented in the form of the Criminal Code. Art. 1 of the Criminal Code of the Republic of Kazakhstan provides that criminal legislation of the Republic of Kazakhstan consists of the Criminal Codeonly, and new regulations stipulating criminal responsibility, are subject to be included in the Code. Thus, as a source of criminal law cannot act any other regulations, as well as customs and judicial precedents. Regulatory decisions are not sources of the Supreme Court of the Republic of Kazakhstan, as they cannot createany new rules, their task – to disclose the existing criminal-legal acts and regulations. 1. Concept of Criminal law is a normative-legal act adopted by the supreme bodies of state power, which consists of interrelated legal rules defining the foundation and principles of criminal liability, actions qualified as crimes, order of punishment for committing them, or presence of certain conditions of basis for exemption from it. Criminal law has a number of features. Criminal law is adopted by supreme bodies of state power by the procedurewhich is strictly regulated by the Constitution. Draft bill considered and approved by a majority vote of the total number of deputies of Mazhilis will be passed tothe Senate where it is considered no more than sixty days. The draft adopted by a majority vote of the total number of deputies of the Senate becomes law and within ten days submitted to the President for signature. Criminal law has a supreme legal authority. Legal validity is a feature ofnormative act: to give, rise legal consequences. The highest legal power lies in the fact that: a) no other body has the right to cancel or 13

change the law, and b) all other regulations shall not conflict with the law, and c) in the case of a contradiction to the law of other regulations priority must belong to the law. Next feature of the criminal law is its normativity. Criminal law includes the norms of law, ie, the mandatory rules of human behavior, calculated on an indefinite number of cases of this kind, and an unspecified number of subjects. Criminal law is the only source of criminal law. The legal basis of the criminal law is the Constitution of the Republic of Kazakhstan and generally recognized principles of international law. In Art. 1 of the Criminal Code of the Republic of Kazakhstan provides that “true Code is based on the Constitution and e generally recognized principles and norms of international law.” These provisions, especially in the period of legal reform, obtain particular importance because of their acceptance and implementation will determine the content and direction of legislation to improve criminal legislation of the Republic of Kazakhstan, as well as provide a mutually beneficial co-operation in the fight against international crime. However, it should be remembered that the criminal law, in contrast to the objective laws of nature and society, created by people, legislator, and therefore its content is primarily determined by the existing material and spiritual conditions of society. 2. Structure of the Criminal Code The Constitution of the Republic of Kazakhstan adopted in 1995, has founded a new system of political and economic relations in the country, which requested bringing criminal legislation into conformity with the requirements of the new Basic Law of the Republic of Kazakhstan. The current Criminal Code of the Republic of Kazakhstan consists of two parts: general and specific, which includes seven sections, 16 chapters and 422 articles. In the General part there are set out general terms and provisions of the criminal law, and special part sets out specific types of crime and punishment for committing them. 14

General and Special Parts are closely related, because it is impossible to apply special part without referring to General, as bases and procedures of bringing the perpetrator to criminal responsibility and getting punishmentare established in this part, as well as conditions for exemption from them, stages of commission of the crime, form of fault, the circumstances precluding criminality, etc.are defined here too. At the same time, General Part of the Criminal Code would be unable to implement the tasks assigned to itwithout a special part, as signs of a particular crime and punishment (sanctions) are defined for it in the Special Section. The general part of the Criminal Code consists of 7 chapters, 96 articles; Special contains 16 chapters, 326 articles. In General Part the sections are allocated depending on the analyzed concepts (for example, section II “Crime”), and in Special part–according to generic object of offence (eg, personality – Chapter I «Crimes against the person”). Chapters of the Special Part are consisted of articles. In turn, the articles are divided into parts, which are indicated by Arabic numerals, and parts are divided to items marked with letters (for example, item “b” Part 2 of Art. 96 of the Criminal Code of the Republic of Kazakhstan). Peculiarity of the structure of the Criminal Code of RK is that constituent elements of criminal law are not allocated, and only in some of the articles a hypothesis ispresent. In the Special part, by contrast, there is clearly marked as a disposition and sanction too, hypothesis is absent as a rule. Disposition is the part of the Special part revealing the concept of a criminal act. Sanction is the part of article of the Special Part in which types, timing and size of penalties are fixed. The disposition of articles of the Special partis simple, descriptive, reference and blanket. Simple disposition names only act without disclosing its symptoms. Forexample, Art. 125 oftheCriminalCode of RK–plagium. The narrative disposition names act and reveals its symptoms. For example, disposition of part 1 of article.96 of the Criminal Code of RK about murder, this is revealed as an intentional causing of death to another person. Citatory disposition is disposition, which in contrast to narrative disposition does not reveal features of a crime, and refers to another 15

article or part of the same article of the Criminal Code. For example Part 1 of Art. 104 of the Criminal Code of the RK “Intentional infliction of moderate bodily harm ... not entailing the consequences referred in Article 103 of this Code.” Blanket disposition is disposition, which in the criminal law is called a crime, without defining its characteristics, and refers to other laws or by-laws of other branches of the law. For example, Part 1 of Art. 152 of the Criminal Code of the RK “Violation of safety rules, industrial hygiene and other rules of labor security… “. In current criminal law a relative-definite and alternative sanctions are allocated. Relative-definite is a specific sanction, which sets out the terms of punishment or its size. Alternative sanction involves two or more basic sentences. 3. Operation of criminal law in space and time In General Part of the Criminal Code of the RK rules of the criminal law in time and spaceare established. Criminal law in time is that criminality and punishability for act shall be determined by the law in force at the time it was committed. These provisions prohibit applying new law to the act that was committed before its entry into force. For the correct application of the criminal law is important to be able to determine the time of the crime. The Criminal Law states that the time of committing a crime is the time of a socially dangerous act, regardless of the time of the consequences. In the case of a continuing offense, that is continuously ongoing in the form of the process (for example, possession of a firearm), at a change of the criminal law the responsibility is incurred by new (amended) law as a socially dangerous activity continues after its entry into force. Criminal responsibility for continued crime when the act is performed in identical actions, united by a common goal (eg, theft of parts for the assembly of TV), comes by the law in effect at the time of punishment of those responsible, either upon completion of their own criminal. As an exception to the general rule the criminal law stipulates that retroactivity of the criminal law is allowed if it eliminates the criminal16

ity of the act, mitigates punishment or otherwise improve the position of the perpetrator. Retroactive effect of the law is that it applies to faces who have committed criminal acts prior to its entry into force. Part 1 of Art. 5 of the Criminal Code of the Republic of Kazakhstan states that the law eliminating the crime or punishablity for act, mitigating responsibility or punishment or otherwise improving the situation of the person who committed the crime shall have retroactive effect, that is to say it is spread to faces who committed relative act before the law took effect, including faces who are suffering or who have suffered sentences but have a criminal record. This situation is caused by the principle of humanism of criminal right. In this case, Criminal Code indicates specifically that criminal law, worsening the situation of the person is not retroactive. Operation of criminal law in space is based on two principles: territoriality and nationality. The territorial principle of operation of criminal law is consisted in that a person who committed a crime on the territory of the Republic of Kazakhstan shall be liable under criminal legislation of the Republic of Kazakhstan. The territory of the Republic of Kazakhstan isunderstood the area located within its boundaries: land, water area, airspace, continental shelf and exclusive economic zone. Territory of the Republic of Kazakhstan is also located on the open seas or in airspace of civilian vessel of the RK;herewithmilitary vessels are admitted as the territory of the Republic of Kazakhstan, regardless of their location. From this principle, there is an exception, applicable to faces having legal (diplomatic) immunity. These faces cannot be brought to criminal responsibility without consent of the government of the country they represent. The principle of citizenship means that citizens of the Republic of Kazakhstan, wherever they may have committed a crime, shall be liable under the Criminal Code of the Republic of Kazakhstan. Kazakh servicemen are also responsible under the Criminal Code of RK, unless otherwise provided by international contract. However, the Code provides that the citizens of the Republic of Kazakhstan shall be criminally responsible only if they have committed an act considered a crime in a foreign country and they were not convicted 17

for that crime before. In the event of a conviction of such faces the punishment designated to them cannot exceed a superior limit of sanction stipulated by the criminal law of a foreign country on whose territory the crime was committed. The current Criminal Code formulates a real principle of operation of the criminal law, according to which foreign nationals are liable to prosecution under the Criminal Code of RK and in that case when the offense is committed outside the Republic of Kazakhstan. These effects occur when the crime they committed against the interests of the Republic of Kazakhstan, as well as in other cases stipulated by international contract. All of the above provisions shall also apply to faces without citizenship (stateless persons) if they are resident in the territory of the Republic of Kazakhstan. The Criminal Code contains a principled condition that the citizens of the Republic of Kazakhstan who committed a crime on the territory of a foreign state shall not be extradited to the State. Foreign citizens and stateless faces may be extradited to a foreign state in accordance with the international contract of the RK. Initsabsence, theissueissolvedthroughdiplomacy. 4. Interpretation of the criminal law Interpretation of the criminal law is clarification of the actual content of the law for the purpose of its application in strict accordance with the will of the legislator. Interpretation of criminal law is divided into several types depending on the subject, mode and scope of interpretation. Depending on the subject, which explains the law, it is distinguished as formal, judicial, scientific interpretation. Official interpretation is carried out by bodies authorized by official regulations. For example, during adoption of law the parliament can simultaneously issue a certificate explaining its use. This type of interpretation is anobligatory for anyone who uses interpreted norm of the criminal law. 18

Judicial interpretation is given by the court bodies and ensures the correct and uniform application of the law in the courts. In our country, the judicial interpretation is mainly presented in the leading explanations of the Supreme Court of the Republic of Kazakhstan. Scientific interpretation is given by scientists-lawyers, practitioners and experts in the comments to the criminal law, in textbooks, in scientific papers, lectures, monographs. Such interpretation is not mandatory and cannot be referred to resolve the dispute, but it plays an important role in improving the criminal legislation, helps for proper application of it. By the method of interpretation of the criminal law they are distinguished as grammatical, systematic, historical interpretation. When grammatical interpretation the structural elements of article are set: a hypothesis, disposition, sanction, as well as the meaning and content of individual concepts and terms of the criminal law are clarified, semantic relationship between them is determined. Systematic interpretation is in understanding the content of the criminal – legal norm (article) by comparing it with the norms of other laws and regulations (for example, to understand correctly and apply the rule establishing criminal responsibility for violation of traffic rules it is necessary to apply to specific acts which define the rules of the road). Historical interpretation is intended to analyze the historical context in which the criminal law was adopted. This interpretation allows us to understand the causes and circumstances that led to the adoption of a new criminal law, its socio – political meaning. Interpretation of the criminal law by volume can be: a literal, restrictive expansive. In most cases, the real meaning of criminal-legal norm is explained literally becomes clear, that is exactly according to the text (letter) of the law. During literal interpretation the content of the criminal norm fully coincides with its textual expression. Restrictive interpretation is applied if the actual content of the criminal-legal norm is narrower than its textual expression in the law. Expansive interpretation of the criminal law gives a broader meaning than it follows from a literal analysis of the text. 19

Chapter 3 Concept of crime

1. Concept, elements of a crime 2. The crime is always illegal 3. Categories of crimes

1. Concept, elements of a crime Crime is guilty, committed, socially dangerous act prohibited by the Criminal Code under the threat of punishment (Article 9 of the Criminal Code of the Republic of Kazakhstan). There are the following elements of a crime: 1. Crime – it is always an act, that is, it can be done both by action and inaction. Action – it is the active form of committing of the crime; by inactivity a guilty person does not commit an action that he should and could do. Intellectual activity of human is non-punishable, as it is not accompanied by a socially dangerous act. 2. The crime is a socially dangerous act, that is, it causes or creates a real possibility of significant harm to public relations, protected by criminal law. Public danger is high-quality and objective evidence of a crime, allowing separating the crime from other crimes. Herewith the law specifically emphasizes what is not a crime, although formally containing any elements of any crime, but because of their insignificance do not pose danger to society. Criminal law distinguishes qualitative and quantitative sides of a danger to society, since it is said that in sentencing it is necessary to take into account both the nature and degree of social danger of the crime. Nature of public danger (qualitative aspect) is determined by the object of a criminal assault, so the crimes that infringe one object belong to the same type of public danger (for example, crimes against public health.) If crimes are directed against different objects, they have a different character of public danger, in this case, more significant the 20

object of invasion the higher nature of the social danger of the crime (eg, crimes against life are more dangerous than crimes against property). The degree of public danger (quantitative aspect) of the crime is primarily determined by the severity of the consequences caused, a form of guilt and manner of its commission. Expression of degree of public danger is in sanction of criminal – legal norms, so the more severe sanction, the higher, from the point of view of legislator, the degree of social danger of the crime (eg, torture is punished more severely than the beating, as made by more dangerous way). 2. The crime is always illegal The illegality is prohibition of act by criminal law, so this feature is called still illegal. Illegality indicates that the offender has violated the prohibition established by Criminal Code. It is not admitted to use the analogy of the law, so it will only be an illegal act which is directly provided in the disposition of the criminallegal norms. 4. Mandatory feature of a crime is guiltiness of person. Guilt is a certain mental attitude of a person to committed act by him. Guilt can be either in the form of intent, or in the form of negligence. This feature eliminates the possibility of objective imputation that is bringing a person to criminal responsibility only for the fact of harming them without setting (proof) of his guilt. 5. Every crime is punishable. Punishability is a threat, possibility of criminal penalties for committing an act, prohibited by the Criminal Code. 3. Categories of crimes The current Criminal Code divides crimes according to nature and degree of danger into four categories. The formal delimitation of the categories of crime is the sentence, and for the most serious – a form of guilt also. Crimes of light seriousnessare an intentional act for the commission of which the maximum punishment under the Criminal Code does not exceed two year imprisonment, and negligent acts for the commission 21

of which the maximum sentence under the Criminal Codedoes not exceed five year imprisonment. Crimes of moderate seriousness is an intentional act for the commission of which the maximum punishment under the Criminal Code does not exceed five years in prison, as well as negligent acts for the commission of which imprisonment is stipulated for a term exceeding five years. Serious acts are for the commission of which the maximum penalty does not exceed more than twelve year imprisonment. Particularly serious are deliberate acts of commission which is punishable for a term of twelve years or death penalty. The value of division of crime into categories has not only theoretical but also practical importance. Depending on the category of crime issues such as the definition of the duration of limitation period, type of mode of the prison, order of application of parole, bases for excluding criminal responsibility, and more, are solved.

Chapter 4 Criminal responsibility and corpus delicti as its base

1. Concept of criminal responsibility 2. Concept and structure of corpus delicti 3. Features and elements of crime 4. Types of corpus delicti

1. Concept of criminal responsibility Criminal responsibility is set by the criminal law obligation of the person to be punished or other measures of criminal- legal nature of his crime. Criminal responsibility is the formation of multi-element, which includes: duty of a person to answer for his crime, conviction, expressed in the negative appraisal by the court for acts committed by the person, application of measures of criminal-legal character towards guilty person; criminal record, as a legal consequence of assignment of punishment. Criminal responsibility arises from the moment of the crime commitment and is being implemented from the date of application to the face of criminal coercion. Criminal responsibility ceases with the expiration of a criminal record. If the punishment was not appointed to person, the criminal responsibility shall be the date of entry into force of a judgment of conviction. Criminal responsibility is closely connected with the punishment, but not confined to it, as the punishment is just one form of implementation of criminal responsibility. In addition to penalties the criminal liability may also be implemented by the conviction of a person without assignment of punishment, as well as in the form of coercive medical measures. Thus,criminal responsibility is a broaderconceptthanpunishment. Criminal responsibility is different from other kinds of responsibility according to: 23

– a sole basis of criminal responsibility is an act that contains all the elements of corpus delicti, – criminal responsibility and procedure of its application may be established by law, – criminal liability may be imposed on a person only by court, no other bodies and officials do not have this right; – criminal liability is strictly personal. It can be applied only to the individual, whereas, for example, civil or administrative responsibility extends to legal bodies; – criminal responsibility may involve a criminal record. 2. Concept and structure of corpus delicti Corpus delicti is a set of established by the criminal law features that characterize the act committed as a crime. Features of corpus delicti are contained in the Common and in the Special Part of the Criminal Code. Corpus delicti is the only base for criminal responsibility. Corpus delicti and crime are closely related, but they are not identical concepts. Crime is a phenomenon of objective reality, and corpus delicti – a legal concept of it, so the crime is a factual basis of criminal responsibility, and corpus delicti is a legal, as set by the criminal law. The value of corpus delicti is also in the fact that it is a condition for the correct classification of crime. Qualification of the crime is an establishment of correspondence between the features of the particular committed crime and features contained in the relevant article (norm) of the Criminal Code, namely by features of corpus delicti. If during matching process it is determined that the features are match, then it can be concluded that qualification has been carried out correctly. In the Criminal Code there is an exhaustive list of crimes, so if the act committed does not fall under any of the signs of the crime specified in the law, criminal liability is excluded. 3. Features and elements of crime Feature of a crime is indicated in the criminal law of the specific properties of the crimes that can distinguish one from the other crime. 24

Elements of crime include a group of features and correspond to different sides of the crime: its object, objective aspect, the subject and the subjective aspect. Therefore they distinguish: the object of crime; objective side of the crime, the subject of crime; the subjective aspect of the crime. Features of a crime are also divided into four groups: features characterizing the object of crime, features characterizing the objective aspect of the crime, features characterizing the subject of the crime, features characterizing the subjective aspect of the crime. All the offenses are the same for elements but have different characteristics. The object of crime is protected by the criminal law public relations, which are infringed as a result of a socially dangerous act. Art. 2 of the Criminal Code of the Republic of Kazakhstan gives a list ofobjects such as: rights and freedom of human; property; public order and safety, the environment, the constitutional order of the Republic of Kazakhstan. Subject of a crime must be distinguished from the object of crime, here is shown not public relations, butan exact facts of objective reality, in connection with which the crime is committed. The objective aspect of the crime is an outer aspect of the crime. Features of the objective aspect of the crime include criminal act, socially dangerous consequences, causal link, method of the crime, the place, time, tools and means of committing the crime. The subject of crime is a physical body who commits an offense and is able, in accordance with the criminal law to bear criminal responsibility for it. Features of the perpetrator are the physical nature of a person, his sanity and his attainment of a certain age. In some cases the criminal responsibility requires additional attributes of a person: citizenship, engage in certain positions, etc. Inthiscasewespeakabout a specialsubject. Subjective aspect is characterized by mental activity of a person, which is directly related to the criminal act committed by him. Features of this element corpus delicti are the guilt that can exist in the form of intent or negligence, as well as the motive, purpose and emotions of crimes. Required features of a crime are common to all crime, without exception. The failure to establish all obligatory features in a particular 25

act eliminates the possibility of bringing a person to criminal responsibility due to lack of evidence. Each element of corpus delicti has its mandatory attributes: for object – it is the presence of protected by the criminal law of social relations, for objectiveaspect – a socially dangerous act, for the subject – a physical body, putabilityand certain age, subjective side is guilt. Elements of corpus delictimighthave optional features. Optional features are characteristics that are not inherent to all but only to some elements of corpus delicti. They further characterize the elements of the the corpus delicti. They are:for object – an additional object and subject of the crime, for the objective side – socially dangerous consequences, causation, and the place, time, environment, fashion, tools and means of committing a crime, and for the subject – a special subject, for subjective side – the motive , purpose and emotions. The value of optional features is that they can become binding if the legislator introduces them to the particular offense as a necessary condition for criminal responsibility. In addition, these features may act as circumstances mitigating or aggravating the criminal responsibility. 4. Types of corpus delicti The classification of the types of corpus delicti is based on three grounds: the degree of public danger;construction of corpus delicti, structure of the corpus delicti. According to the degree of social danger the crime distinguishes 4 types of corpus delicti: basic structure, contentwith mitigating circumstances, content with aggravating circumstances; content with special aggravating circumstances. An example of the basic structure of the crime – the murder (Part 1 of Art. 96 of the Criminal Code of the Republic of Kazakhstan), content with aggravating circumstances – murder committed with special cruelty (item “d” of Part 2 of Art. 96 of the Criminal Code of the Republic of Kazakhstan), content with mitigating circumstances – murder in the heat of passion (Article 98 of the Criminal Code of the Republic of Kazakhstan). According to the construction of content the crimes distinguish three types of contents: material, formal, degraded contents. 26

Material content of crimes have as their essential characteristics not only act, but also socially dangerous consequences, as well as the causal connection between them. An example for material content is crimes caused harm to varying degrees of severity. In this case socially dangerous consequencesare the damage caused to health, and the word “caused” means that there is a causal connection between the act and consequences of its commission. Formal content of the crime has only one mandatory attribute – an act, so the crime with such content considered completed since the commission of the criminal act, beginning of the consequences is not required. An example of formal content isfailure to give assistance to persons in mortal danger (Article 119 of the Criminal Code of the Republic of Kazakhstan), extortion (Article 181 of the Criminal Code of the Republic of Kazakhstan), and more. When degraded content the crime is consummated at an earlier stage of its execution (for example, banditry Art. 237 of the Criminal Code of the Republic of Kazakhstan). According to the structure the corpus delictidistinguishes 3 types of structures: simple, complex, alternative. In the simple structure of corpus delicti all features of a crime are specified by law only in one-dimensionalway that is as unique. For example, content of theft is simple, because it has only one object – the property, objective aspect is represented by only a single action, the subjective aspect includes only one form of guilt – intent. In the complex contentof the crime at least one of the symptoms is described in multidimensional way. For example, terrorism infringe on multiple objects at the same time: public security, life and health. Alternate structure is characterized by the fact that the law admits the crime on the basis of commissionof at least one (any) of actions listed in the disposition of the criminal – legal norms. An example of this is the disposition of Article 259 of the Criminal Code of the Republic of Kazakhstan, which provides criminal responsibility for the illegal purchase, possession, transportation, manufacture or sale of narcotic or psychotropic substances.

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Chapter 5 Object of the crime and the subject of crime

1. The concept and value of an object of crime 2. Object classification of the crime 3. Subject of the crime, its difference from the object

1. The concept and value of an object of crime The object of crime is social relations under the protection of the criminal law which are impacted by the criminal act that causes harm or a real threat of harm. The Сriminal Code lists the objects protected by the criminal law on the basis of their significance. Therefore, rights and freedom of man and citizen are put to first place as the highest value and most important object. The list of objects is not stable, since it varies depending on the change and development of specific social and economic relations. Therefore, over time, there are new groups of public relations, which are protected by the criminal law, while the former acts that infringe on certain social relations are decriminalized, which is no longer considered a crime. The value of crime is determined primarily by the fact that it is one of the elements of corpus delicti. Therefore, to bring the person to justice should determine to what social relations his act caused harm. Absence of the object precludes criminal responsibility, as there is no single element of corpus delicti. Secondly the object of crime allows to distinguish crimes one from the other that are the same on other elements. For example, depending on what was the object of a crime it can be separated – the killing from of causing grievous bodily harm that resulted the death of victim, as the object of killing a human life, and the object of harm is health. The value of object of crime is manifested in the fact that more significant if object injured, then more serious punishment is specified for 28

this. For example, use of death penalty is possible in the commission of offenses against the person. 2. Object classification of the crime Division of objects into types is made according to the terms of public relations, for which committing of criminal invasion is made. . Depending on this distinction: there are general object, generic object, direct object General object is a set of social relations protected by the criminal law. A generic object is a group of interrelated social relations of one kind, whichare impinged byone kind crime. A generic object is the criterion for the division of the Special Part of the Criminal Code on the topic. Direct object is particular social relations injured by crime and threatened to cause it. According to direct object the Criminal Code is divided into articles. Direct object can be: – main, if it coincides with the content of a generic object (for example, the object of fraud); – additional, if the offense is aimed directly at other main object, but, nevertheless, causes harm in obligatory way. For example, robbery encroaches on the property, and health of the individual, but main object hare is property relations, and additional – human health, since the purpose of robbery is the taking of another’s property; – optional direct object is a concrete social relations that are harmed, but it is not provided in the article. For example, the main object of plunder is the property relations, and the optional is physical and psychological integrity of the victim as well as robbery may be connected with violence or threat of violence. 3. Subject of the crime, its difference from the object The subject of the crime should be distinguished from the object of the crime as a group of public relations. The subject of crime is property about which the crime is committed. 29

Not all crimes are committed by exposure to certain external things of the world; therefore the object of the crime is an optional feature of corpus delicti. For example, the object of theft is the property relations, and subject is exact real and personal property: cash, securities, vehicles, etc. If the object of the crime is always harmed by any offense, the subject of crime, as a general rule, does not suffer any harm. The subject of crime should also be distinguished both from the victim, which is an individual who has suffered physical or emotional harm caused by the crime, and tools and means of the crime with which it is committed.

Chapter 6 Objective aspect of crime

1. Concept and importance of the objective side 2. Socially dangerous act 3. Socially dangerous consequences 4. Causal relationship 5. Optional features of objective aspect of the crime

1. Concept and importance of the objective side The objective aspect of crime isan internal aspect of the crime, which characterizes the process of committing a criminal act. Signs of the objective aspect of the crime are socially dangerous act, socially dangerous consequences, causal relationship, time, place and situation, way, instruments and means of committing the crime. From these signs only socially dangerous act is a sign of the objective aspect of the crime. Value of the objective aspect of the crime is: – one of the elements of corpus delicti, sonon-establishment in a specific act of features of objective aspect of crime preclude criminal responsibility; – can distinguish crimes coincidentby other elements and characteristics of the crime. Such as robbery and burglary coincide with each other according tomain object, subject and subjective aspect but the ways committing these crimes are different, and that allows us to consider robbery and burglary as different crimes; – value of objective aspect is conditionaland by that that for correct classification of the crimeit is necessary to install all the features of particular crime which, however, are not always indicated in the relevant article. Features of same objective aspect are always adequately reflected in the disposition and therefore allow you to set object of the crime, form of guilt, characteristics of the perpetrator and etcwhen the latter are not shown in the disposition of the criminal – legal norms. 31

2. Socially dangerous act Socially dangerous act is the only mandatory feature of the objective aspect of the crime. Legal attributes of a criminal act are: – Social danger. Socially dangerous act means that it causes or creates a real threat of harm to the objects protected by the criminal law. Social danger, and its degree is the criterion for distinguishing between offenses to crimes, administrative and civil-law delicts, as well as disciplinary offenses; – Illegality. This means that the commission of a given act prohibited by relevant article of the criminal law; – Awareness. This feature means that a person commits a socially dangerous act in good mental health, having understood its actual content and nature of the possible consequences. Otherwise, the act is not recognized as a criminal, as in accordance with the Criminal Code conduct is deemed to be committed innocently if the person who committed it, was not aware of the circumstances of the case and could not be aware of the social danger of his actions; – Strong-willed nature of the act. The act is not recognized socially dangerous if it is committed by a person who could not control his actions. Therefore person shall be exempt from criminal responsibility if the damage was caused by physical or psychological coercion, force majeure and more. Socially dangerous acts can be committed in two forms: the act or omission. Action is an active conduct of a person, presenting itself as a rule, in a physical action on the object of assault (murder, theft, etc.). The action can also be expressed in verbal or written form: insult, threat of murder, forgery, etc. Inaction – it is a passive form of the act, as in this case, the offender evades (refrain) from taking actions that it should and could do. With the criminal inaction, firstly it is necessary to define duty of a person to act in a certain way. Such a duty may be imposed on the person by direct indication of regulation, contract, or may be due to family relationships, office and other bases. 32

Inaction is clean when it is not making the desired action, as it happens, for example, in the case of abandonment in danger. Net inaction is totally passive. Mixed inaction is expressed either in partial fulfillment of required actions, or improper performance of them – such as negligence. 3. Socially dangerous consequences Socially dangerous consequences – it may occur as a result of the offense substantial harm to social relations protected by the criminal law. Depending on the nature of the damage caused socially the harmful impacts may be material and non-material nature. If the consequences are the result of physical effects on humans and things of the external world or lead to a change in financial status, they are recognized as material. Material consequences are divided to property, if expressed in causing actual damage or loss of profits, and the personal (physical) if the harm to life and health of an individual. Non-material impacts are caused as if the object of the crime is non-material (intangible), and expressed in the occurrence of political, organizational and moral damage. For example, hooliganism can be expressed in the disruption of cultural, political or other public event that causes significant harm to the organization, which has a non-material nature. According to the severity of the damage caused socially dangerous consequences are allocated in the form of: moderate damage (permanent disability to one-third – art. 104 of the Criminal Code of the Republic of Kazakhstan); serious harm (the loss of the victims of an organ – art. 103 of the Criminal Code of the Republic of Kazakhstan). 4. Causal relationship The causal relationship is objectively existing conditionality, relationship between socially dangerous act and socially dangerous consequences. Signs of causal relationship: – a temporary sign. This means that the act must be preceded by a time socially dangerous consequences; 33

– presence of real possibility of socially dangerous consequences as a result of the criminal act. So, driving in a state of extreme intoxication is always a real threat of substantial harm, while driving a vehicle without a driver’s license, which, for example, forgotten, no real threat is contained; – act committed by the guilty person should be the main condition, the cause of the onset of adverse effects. This means that criminal result naturally, inevitably occurs as a result of the commission of a given act, and it is a necessary consequence. Therefore, the causal relationship is called necessary too that sets it apart from various random relations that are merely a manifestation, the need to supplement, but the socially dangerous consequences cannot be caused. 5. Optional features of objective aspect of the crime Optional features of the objective aspect of crime are also the time, place and situation, way, means and instruments of crime. Time of crime – it’s either the duration of the crime, or a certain period of time, during which it occurred. For example, an unauthorized service leaf becomes a crime only if it lasted more than two days (Article 372 of the Criminal Code of the Republic of Kazakhstan). Place of the crime is a space, area within which the crime is committed. For example, a violation of mode of the protected natural areas (Article 293 of the Criminal Code of the Republic of Kazakhstan). Environment is conditions of the crime. For example, the murder is carried out in condition of affectunder an influence of particular situation: violence or abuse of victim (Article 98 of the Criminal Code of the Republic of Kazakhstan). Method of the crime is a set of techniques and methods used by the offender in the commission of a criminal act. The act of violence, malversation, fraud, breach of trust and etc. can act as methods. An instrument of crime is the subject of the external world, which is directly used to commit a criminal act, for example, a firearm in the murder. Means of committing a crime – that’s what makes it easier to commit or successful completion of started crime. For example, thieves use a car for the speedy removal of the stolen property. 34

Optional features of the objective aspect of crime have a threefold meaning: – In the description of the crime optional features may become mandatory. For example, robbery is performed in a special way: with violence, dangerous to life or health, or the threat of violence. If such a method is not set, the composition of robbery is absent; Optional features may acquire meaning of aggravating circumstances. For example, hooliganism committed with a weapon, shall be punished more severely than the main content; – If optional attributes are not specified in the disposition of the criminal – legal norms and therefore do not affect the qualification of the crime, they can still play the role of circumstances mitigating or aggravating. For example, a crime under the influence of physical or mental coercion is mitigation of punishment and crime in an emergency – aggravating (Article 53.54 of the Criminal Code of the Republic of Kazakhstan).

Chapter 7 Subject of crime

1. Concept and features of subject of crime 2. Sanity of the person 3. Concept of a special subject and its symptoms

1. Concept and features of subject of crim The subject of crime is a physical body who commits an offense and is able, in accordance with the criminal law to bear criminal responsibility for it. Subject of crime is one of the elements of corpus delicti and is characterized by the three mandatory and one optional feature. Mandatory features of the subject of crime: The subject of crime may be physical bodies. Criminal Legislation of the Republic of Kazakhstan does not provide for possibility of criminal responsibility of legal bodies. Achieving a person of a certain age, occurrence of which can be a base for bringing to criminal responsibility. It is necessary to distinguish between the concept of minority status and age at which person can be brought to criminal responsibility, as minors are faces who have not attained at the time of the crime 18 years, they can be involvedfor criminal responsibility from 16 years, and in some cases – and 14-years. Art. 15 of the Criminal Code Republic of Kazakhstan establishes a general rule, under which a person is subject to criminal liability, who reached to the time of the crime the age of sixteen. It is believed that at that age a person is able to fully and adequately aware of what is happening and react to it intelligently. For certain crimes (such as murder, intentional infliction of grievous bodily harm, robbery, vandalism, and more) the Legislator establishes an earlier age for possible criminal responsibility, namely the age of 14. This is not due to increased risk and severity of the crime, butby 36

fact that the social danger of the crimes may be understood already by person, and at an earlier age. For the purposes of involvement of guilty person to criminal responsibility it is necessary to define his age, so in some cases there is appointed an expert. However, the person is considered to have reached the age of criminal responsibility, not on the day of his birth, but next day. If the day and month of birth cannot be established, the birthday of person is considered to be the last day of the established year of birth. Conditions of life and identity of the accused strongly affects to subject peculiarities, so the criminal law establishes the possibility of exemption of a minor from criminal responsibility, even if he has reached the age of criminal responsibility, but because of the lag in their mental development, not associated with mental illness, could not fully realize the nature and social danger of his actions or control them. This reflects the principle of humanity of the criminal law. 2. Sanity of the person is its ability to recognize the nature of his conduct and supervise them. Otherwise, talk about the insanity. This feature because of its distinctive content requires special consideration. Criminal responsibility may be applied only to a person who was sanity at the time of the crime. Insanity person shall preclude criminal penalties. Insanity is a state of mind in which the person could not realize the nature and social danger of his actions (inaction) or to control them due to: chronic mental disorders, temporary mental disorder, dementia, other mental condition. There are two criteria of insanity, medical and legal. Medical criterion characterizes the mental state of the person in comparison with the biological norm and established according to psychiatry. The existence of a legal criterion establishes the court, and it is characterized by a state of the person at the time of the commission of a socially dangerous act. Only the simultaneous presence both medical and legal characteristic leads to the conclusion of the insanity of the person. Herewith insanity must be set exactly at the time of the commission of a socially 37

dangerous act, as if the person was mentally ill after the commission of a criminal act, it is recognized as a subject of the crime and therefore can be held criminally liable after his recovery. Medical criterion of insanity indicates the presence of a person who committed a dangerous act, of any form of mental disorder. Such forms (elements) medical criteria include: a variety of chronic mental disorders that are the consequence of such intractable and long flowing diseases such as schizophrenia, epilepsy, paranoia, manic – depressive psychosis, and more; Temporary mental disorder. They proceed (pass) relatively quickly and usually end in complete recovery. For example, pathological intoxication, abnormal affects, alcoholic psychosis; Dementia is a deep and small reversible defeat of human intellect. There are three degrees of dementia: idiocy (the most profound degree of destruction of mental activity), imbecility (medium) and debility (the easiest). In the first two cases, the person is insane almost always, while debility usually does not preclude sanity; Other theism of the mind. They are not caused by mental illness, but nevertheless denied the possibility of a person to recognize the content of the actions. For example, all sorts of crazy phenomenon on the basis of severe infectious disease. Legal insanity criterion is that the person committed the crime did not realize the actual nature and social danger of his actions (smart tag), or was not able to control his actions (volitional feature). For the availability of legal criterion it is sufficient to have one of the above tests, either intellectual or volitional. A final decision on the recognition of a person as insane takes only a court, herewith conclusion of judicial – psychiatric examination on the issue of sanity or insanity of a person is not mandatory for him, and considered along with other evidence in the case. 3. Concept of a special subject and its symptoms Special subject is a person who, in addition to general binding characteristics of the perpetrator has a number of additional features that reflect its specific features. 38

This is the only additional feature of the subject of crime. Signs of a special subject are diverse and can be caused by circumstances such as: – official position of person: only a person holding public post can be held liable for bribery (Article 307 of the Criminal Code of the Republic of Kazakhstan); – Professional duties of person: failure to provide care to the patient (Article 118 of the Criminal Code of the Republic of Kazakhstan); – citizenship of a person: only foreign national can be prosecuted for espionage (Article 166 of the Criminal Code of the Republic of Kazakhstan); – Family relationships: failure to pay alimony (Article 136 of the Criminal Code of the Republic of Kazakhstan); – attitude to military service: desertion (Article 373 of the Criminal Code of the Republic of Kazakhstan), and more. Special subject as an optional feature of the element of corpus delicti is important: – If features of special subject are included by the Lawto the main part of crime delicti, they become binding. Therefore non-establishment of a special subject in anexact act precludes criminal responsibility; – Features of special subject of the crime can be included in corpus delicti withaggravating circumstance and so they also become mandatory qualification of the crime committed with aggravating circumstances; – Special subject often characterizes the identity of the perpetrator and may therefore act as a circumstance aggravating criminal responsibility. For example, Art. 63 of the Criminal Code of the Republic of Kazakhstan has established that an aggravating factor is commission of a crime with use of confidence given to the offender as a result of his position.

Chapter 8 Mental element in crime

1. Notion and indicia of mental element 2. Notion and forms of guilt 3. Criminal intent as a form of guilt: notion and types 4. Negligence as the form of guilt: notions and types 5. Crimeless infliction of injury 6. Inadvertence in criminal law and its effect

1. Notion and indicia of mental element in crime Mental element in crime means mental activity of the person, directly associated with commission of a crime. This element of crime components specifies person’s mental world, mental processes, proceeded at the moment of commission of a criminal action. Contents of the mental element are exposed by means of such indicia as guilt, motive, intent and emotions; furthermore only guilt is compulsory indicia of any crime components. Guilt is mental attitude of the person to socially dangerous act, committed by him. Motive is mental intention of the person, which arose willingness to commit a crime in him. Motives may be base (profit motive, vested interest, hooligan motive and etc) and deprived of base content (jealousy, compassion fear and etc.). Base motives aggravate punishment, and motives, deprived of base content do not aggravate punishment. Intent is mental model of future result of the crime, to which guilty person goes for. For example, subversion of economic safety of the country as a result of committing an act of sabotage may an intent of socially dangerous act. Emotions are rueful feelings in relation to the committed crime. For example, killing in the heat of passion, which is being intense emotional excitement, emotional outburstу. Effect of mental element in crime lies in the fact that, it is: 40

− one of the elements of crime contents and so allows to separate criminal action out of other law violations. Thus, substitution of child will be accepted as crime only when it is committed with especially dangerous motive: due tomercenary motives and base motives (article 134 of the Criminal Code of the RK); − delimit crime contents from each other, coinciding by elements and indicia. For example, intent of crime commission allows distinguishing hijacking of means of transport from its theft; − non-binding indicia of mental element in crime may be extenuating or aggravating circumstance. For example, crime commission, on grounds of compassion motive, extenuates criminal punishment, and crime commission on grounds of the motive of national or religious hatred aggravates it. 2. Notion and forms of guilt Guilt is mental attitude of the person with regard to committed social dangerous act, provided by the criminal code. Essence of guilt is defined by wrong attitude of the criminal to social values, protected by the criminal law. Degree of guilt purports to be qualitative evaluation of social essence of guilt, which is defined by combination of its form and content. Degree of guilt shows depth of fail value and moral orientations of the guilty person, that therefore effects solution of a problem of his criminal responsibility. Elements of guilt are confession (intellectual element) and will, which constitute its contents in aggregate. Thus, guilt is defined by the activity of the person’s consciousness and his will. Intellectual element purports to be comprehension of the nature of act committed by the person and foresight of an opportunity of ensuing of consequences. Volitional element is expressed in wish or willful acquiescence of socially dangerous consequences occurrence or in improvidence, in reliance on prevention (non-occurence) of consequences. Intellectual and volitional elements are closely interrelated. Their combination constitutes different forms of guilt. Criminal legislation of the RK contemplates two forms of guilt – criminal intent and negligence. Forms of guilt are divided into types: 41

criminal intent – in direct and indirect, and negligence in volatility and contributory negligence. Furthermore, act, committed by negligence only, is deemed to be crime only in case, when it was specially contemplated by the relative article of the Special Part of the Criminal Code of the RK. (part 4 of the article 19 of the Criminal Code of the RK). 3. Criminal intent as form of guilt: notion and types The Criminal Code of the RK for the first time at the legislative level gave definition of the criminal intent and its types. Crime is deemed to be committed with direct criminal intent, if the person was aware of social danger of his action, envisaged opportunity or inevitability of socially dangerous consequences (intellectual element) and wished their occurrence (volition element). The crime is deemed to be committed with indirect intent if the person was aware of social danger of his action, envisaged opportunity of occurrence of socially dangerous consequences, did not wish, but consciously admitted these consequences or did not care a tuppence. Thus, intellectual element on the whole is common both for direct and indirect intent. Furthermore, foresight of inevitability is typical for direct intent,ensuing of consequences while intellectual element of indirect intent includes only foresight of real opportunity of occurrence of consequences, but not their inevitability. Otherwise, indirect intent blooms into direct intent. However, main difference between direct and indirect intent lies in their volatile element. For direct intent volatile element is manifested in the desire of ensuing of circumstances. Desire purports to be endeavor of the person to certain result, which may be performed as the final aim, intermediate stage or means towards its end (for example, killing with the view of facilitation of other crime commission). If the case is about crimes with formal content, then commission of social dangerous act itself is the ambition, so that crimes with formal content are committed only with direct intent. Volition element for indirect intent is specified either by conscientious admission of consequences, or by indifferent attitude to them. In case of indirect intent the person doesn’t wish, doesn’t pursue to ensuing of so42

cially dangerous consequences, however, occupies passive position and thereby judiciously, intentionally admits their occurrence. Furthermore, the criminal may indifferently pertain to occurrence of consequences, completely not thinking on opportunity of infliction of damage. Indifferent attitude to consequences is deemed to be absence of any emotions, rueful feelings with regards to infliction of possible damage in contrast with conscientious admission. Depending on the degree of certainty, substantiation of conceptualization of the person on impersonal properties of the committed act, the following is distinguished: specific intent, general intent, alternative intent. Specific intent is defined by availability of specific conceptualization on the nature and scope of possible damage. For example, stabbing the contaminant in the heart, the guilty person definitely is alive of possibility of death coming, that is indicative of availability of clearly expressed intent, namely for causing death. Alternative intent can be defined in those cases, when the person, committing a crime, anticipates consistent possibility of occurrence of concurrently several consequences, and furthermore his will is directed equally at each of them. Crimes with such intent are qualified according to the actually caused consequences. In case of general intent the criminal has only generalized conceptualization of possible damage. For example, the criminal, stabbing different areas of body, anticipates only opportunity of infliction of injury, however he cannot be aware of its gravity. Crimes, committed with general intent, as well are qualified according to infliction of actual damage. 4. Negligence as form of guilt: notions and types Negligence is the second form of guilt, which in accordance with the Criminal Code may be of two types: in the form of flippancy and in the form of gross carelessness. Crime is admitted as committed by flippancy, if the person envisaged occurrence of potentiality of socially dangerous consequences of his act (intellectual element), but without sufficient reasons presumptuously counted on prevention of these consequences (volition element). 43

Flippancy according to its intellectual element bears resemblance with indirect intent. At the same time in case of indirect intent the person anticipates occurrence of the actual possibility of damage infliction, while in case of flippancy such opportunity appears only as abstract, considering that the person supposes that harm will not occur. Main difference of flippancy from indirect intent lies in volition element. In case of indirect intent the person on the whole is sympathetic to the opportunity of occurrence of damage, in case of flippancy the person on the contrary wishes and strives not to admit infliction of damage and so regards consequences negatively. In case of criminal negligence the person supposes, that he will be able to prevent socially dangerous consequences, considering that he takes into account influence of various circumstances. For example, his own qualities (dexterity, strength and experience), definite environment (night, absence of people), acts of other people, natural forces, mechanisms and etc. However, in reality, the guilty person wrongly evaluates effect of these factors, due to which estimation of prevention of damage becomes unreasonable and socially dangerous consequences occur. The crime is deemed to be committed by negligence, if the person did not envisage opportunity of occurrence of socially dangerous consequences of his act (intellectual element), though in case of necessary diligence and providence he should have envisaged and could envisage these circumstances. Negligence is characterized by two constituent elements: negative and positive. Negative constituent element lies in absence of foresight of criminal consequences of his action by the person as well in absence of understanding of social danger of the committed act itself. Positive constituent element lies in the fact that the person should have envisaged and could envisage occurrence of criminal consequences. Positive constituent element is set by means of objective and subjective criterions. Objective criterion is deemed to be responsibility of the person to envisage socially dangerous consequences (“should have been”). Such responsibility of the person may be set by any obligatory rules: law, job description, order, contract and etc. Subjective criterion is deemed to be individual ability of specific person to envisage opportunity of occurrence of damage (“could be”). 44

Only simultaneous availability of both objective and subjective criterions testifies negligence of the guilty person. Volition element in case of negligence is specified by absence of volition efforts, directed at the possibility to envisage occurrence of socially dangerous consequences. 5. Crimeless infliction of injury The so called case (“fortuitous event “) should be distinguished from criminal negligence. In this case the person did not envisage and for reasons of the case couldn’t envisage occurrence of socially dangerous consequences. Thus, as opposed to negligence the fortuitous event is specified by absence of objective or subjective criterion of negligence or both at once, so criminal responsibility is excluded. The Criminal Code of the RK contemplated special variation of crimeless infliction of injury: action is admitted as crimeless when the person, who committed it, envisaged opportunity of socially dangerous consequences of his act, but could not prevent these consequences due to inconsistency of his psychophysiological qualities to the requirements of extreme conditions or neuropsychic overexertion. 6. Inadvertence in criminal law and its effect Inadvertence is deemed to be person’s misapprehension of actual legal or actual nature of criminal act, committed by him or its consequences. On should differentiate legal and factual inadvertence depending on the nature of misapprehension of the person. Legal inadvertence is deemed to be misapprehension, evaluation by the person of legal essence of the act, committed by him. In accordance with the above, one should differentiate three types of legal inadvertence: − Person’s wrong assessment of his acts as criminal, though criminal law does not classify it as the crime (“imaginary crime”). In this case criminal responsibility is excluded due to the lack of constituent elements of crime; − Person’s wrong assessment of his acts as non-criminal, though in actual fact such act shall be deemed to be crime. In such situation the 45

person is subject to criminal responsibility, because ignorance of law doesn’t release him from penalty; − Person’s Misapprehension of legal assumption of the act, committed by him. For example, the person suggests that he commits one crime, while according to the law it has absolutely different crime components. In case of this inadvertence the guilty person shall be liable for the crime, which he actually committed. Actual inadvertence is deemed to be misapprehension of the person on actual circumstances, which define objective indicia of a crime. Such inadvertences include the following: − inadvertence in object, namely ignorance of the person with due regard to social and legal content of the object of crime. Subject supposes that he endeavors one object, while damage is inflicted in actual fact to the other object. In case of presence of such inadvertence the crime is classified depending on the orientation of the intent. Inadvertence in the object should be distinguished from the personality of the complainant. As a general rule, inadvertence in subject (“unsuitable subject) does not influence on the qualification, because it does not relate to circumstances, which have effect of the constituent element of the components of crime. However, if misapprehension of the subject entails inadvertence in the object, then the action should be qualified according to targeting of intent. Inadvertence in personality is in the fact that the subject wishing to endanger the life or health of one person, in actual fact damages other person. Considering that finally in case of this inadvertence targeted object is affected, then such ignorance of the guilty person does not have the criminal-legal effect, unless and to the extent in these circumstances the object of the crime is not substituted; − Inadvertence with regard to the nature of committed act. It lies in the fact that the person estimates its acts as a crime, though in actual fact it is not true, and vice-versa. In the first case, criminal responsibility is incurred for attempt to commit a crime, in the second case – only if ignorance of the person is established; − Inadvertence with regard to the social danger of consequences, which lies in misapprehension of the person in relation to the rate of inflicted harm. 46

If inflicted harm is less, than the guilty person assumed, then he will be responsible for the attempt to commit a crime with aggravating circumstances, and if inflicted harm is more than the guilty person assumed, then the criminal responsibility occurs only if the committed crime contemplates inadvertent form of guilt; − Inadvertence with regard to casual relationship. Such inadvertence assumes criminal-legal effect only in case if it results in occurrence of the other result than the criminal expected.

Chapter 9 Stages of crime

1. Concept and importance of the stages of the crime 2. Concept and form of preparation for a crime 3. Concept and types of attempt to commit a crime 4. Concept and characteristics of voluntary abandonment of crime

1. Concept and importance of the stages of the crime Stages of the crime are certain stages of the perpetrator of the objective aspect of the crime. Criminal Code distinguishes three stages of the crime: preparation of a crime; attempted crime, completed crime. It is not necessary that all of the crime in its development took all three steps mentioned above. In accordance with the Criminal Code the crime is consummated, if the act committed by a person contains all the elements of an offense under the criminal law. In contrast to other stages the completed crime is characterized by full compliance with the committed act specified in the law of objective and subjective features of crime delicti. The end of the crime depends on the type of content of crime. In crimes of the material composition a socially dangerous act is consummated after the occurrence of the consequences, and formal – from the moment of the crime itself. Crimes with composition of the dangers are recognized as finished, if committed act created a real threat of harm. From the steps of the crime must be distinguished intent detection. This is not an act, but merely another concept, the intent to commit a crime. The criminal law recognizes only act as a criminal, as it is able to cause harm to legally protected relationship, so criminal responsibility for intent detection is excluded. Value of stages of crime committing lies in the fact that: – Definition ofcommitting stage allows to delimit criminal act from the non as the sole basis of criminal responsibility is corpus delicti; – Different stages have different degrees of danger to society. Thus, the attempted crime is more dangerous stage than preparation to the 48

crime, but less dangerous than the completed crime. In practice, this means that each following stage of the crime involves strengthening penalties; – Stage of crime allows you to set certain elements of corpus delicti. For example, the preparation of a crime is carried out only with the direct intention. 2. Concept and form of preparation for a crime The Criminal Code of the Republic of Kazakhstan determines the preparation of a crime as a deliberate action aimed at the acquisition, production or adaptationby person of means or instruments of crime, finding accomplices in the crime, conspiracy to commit a crime, or creating other conditions to commit a crime if the crime has been brought to end by beyond that person’s control. Preparation to the crimeis qualified under the relevant article of the Special Part of the Criminal Code and Art. 24 of the Criminal Code of the Republic of Kazakhstan (“Preparation to crime and attempted crime”).It allows determining accurately the content and extent of the danger of those guilty. From the objective aspect preparation for a crime is committed by actions such as: – finding of means and instruments of crime, that is, the purchase of them by any means. Acquisition method can be both legitimate and criminal; – production of means and instruments – that is their creation in any way. In this case, unlike Acquisition of means the devices are re-created newly; – arrangement is to bring the instruments and means of the crime in a state where it is possible to use them in the commission of a socially dangerous act; – finding of accomplices is actions of the perpetrator to involve in the commission of a crime other persons who may act as organizers, perpetrators, accomplices or instigators. Finding methods can be persuasion, blackmail, threats, and more; – conspiracy to commit a crime – it is a mutual agreement between two or more faces on joint participation in the commission of a criminal act. 49

The objective aspect of preparation is also characterized by the discontinuity of preparatory actions for objective, independent of the person’s control. Characteristics of the above actions show thatat thepreparation of a crime there is no direct impact on the object planned for attack, making this step less dangerous than the other. In connection with this criminal law provides that criminal responsibility comes into force only for preparation of a grave or especially grave crime. Subjective side of preparation for a crime is characterized only by the direct intention. 3. Concept and types of attempt to commit a crime Attempt to commit a crime – intentional acts or omissions of faces directly towards the commission of a crime if the crime was not brought to an end due to circumstances beyond the person’s circumstances. The objective aspect of attempt is characterized with following features: Attempted is the act which is directly aimed at the commission of the crime. At this stage of a socially dangerous act begins to be implemented in practice, in connection with which the object is always harmed or there is a direct threat of such damage; An attempted act is characterized by the fact that during committing of it the crime does not lead to an end for reasons beyond the person’s control. The crime to the material composition is not evident in the occurrence of socially dangerous consequences, and in an attempt to commit a crime with the formal composition is an incomplete implementation of the actions that constitute the objective side of the particular offense. Incompleteness of act allows limiting thisstage from the completed crime. The subjective aspect of the attempt is expressed only in the direct intent. Depending on the assessment of the degree of completion of a criminal act by the perpetrator (subjective criterion) there are distinguisheda completed attempt and incomplete attempt. Attempt is considered as consummated when the offender has made all the actions (inaction), which he considered necessary for the com50

pletion of the crime, but the criminal effect does not occur for the objective reason, that is beyond his control. Incomplete attempt is in the case where the perpetrator did not commit all the actions (or inaction), which, in his opinion, were necessary to bring the crime. Also there is useless attempt, which is divided into an attack on worthless object and attempt with worthless means. The attack on worthless object is that the action of a person by virtue of their actual allowable error is not really capable for causing criminal damage to the object of criminal-legal protection. The attack on worthless object is qualified as a common attempt and entails criminal liability on the same basis. Attempt with worthless means is an attempt, in which a person uses means which in its objective properties are not able to bring the crime to the end. This kind of worthless attempt also entails a criminal responsibility. The only exceptions are cases when a person applies obviously worthless means for the offense (for example, spells, incantations, etc.). These actions are based on the extreme ignorance of persons who do not represent danger to society and therefore do not involve a criminal responsibility. 4. Concept and characteristics of voluntary abandonment of crime Voluntary abandonment of crime is to stop the person making the crime or the termination of action (or inaction) directly aimed at the commission of the crime, if the person was aware of the possibility of bringing the crime. The peculiarity of voluntary refusal of organizer and instigator of the crime is that the waiver should prevent bringing the perpetrator to end of crime; and for accomplice to take all possible measures to prevent the commission of a crime. If the actions of the organizer or instigator did not lead to the prevention of crime by the perpetrator, then measures can be taken will be recognized by the court as circumstances mitigating punishment. Characteristics of voluntary refusal are: – possibility of voluntary refusal only on the unfinished stage of the crime; 51

– voluntary refusal. This means that a person on their own will, initiative stops further action, being understood that there was an opportunity to push the matter before the end of the act. Voluntary service is excluded, if the conduct is stopped for the occurrence of circumstances that prevent or hinder the end crime – finality of refusal. Its essence lies in the fact that a person terminates started act forever and not for temporary pause. There will not be a finality in the event that the offender has not committed repeated acts due to the fact that the first was inconclusive; – waiver must be from all crimes, not only on its continuation. At presence of all the above features person is revealed from criminal responsibility, unless actually committed act contains no other crime.

Chapter 10 Partnership in a crime

1. Concept and value of partnership in a crime 2. Types and partnership forms 3. Concept and value of partnership in a crime

1. Concept and value of partnership in a crime Partnership in a crime is a deliberate joint participation of two or more persons in commission of a deliberate crime. Objective signs of partnership are: – plurality of subjects, that is, at least, two persons, who can be held criminally responsible; – compatibility. Compatibility means that activity of one accomplice supplements activity of another (mutual conditionality) that allows to reach finally the general, uniform for them criminal result. Thus the criminal result is in a causal relationship with actions of each of accomplices; – partnership is possible only before the crime termination. Subjective signs of partnership: – partnership is possible only in deliberate crimes; – all accomplices act deliberately. It means that all accomplices are mutually informed on the joint actions and seek for achievement of the general criminal consequences as result of their combined efforts. It is necessary to distinguish mediocre causing when the guilty commits a crime with use of the persons which aren’t subject to criminal liability owing to the age, diminished responsibility or other circumstances from partnership. In this case there is no plurality of subjects therefore the criminal admits the performer of socially dangerous act. It is necessary to distinguish from partnership also and the privity to a crime as the last though is connected with commission of crime, however doesn’t promote it in view of lack of a causal relationship. Two forms of a privity differ: failure to report and concealment. The criminal code of RK (Special part) unlike the former legislation provides criminal liability 53

only for in advance not promised concealment and only especially serious crimes. Value of institute of partnership is that it: – Establishes objective and subjective signs which are peculiar to all cases of commission of crimes by association of efforts of several persons that allows to delimit partnership from other types of criminal activity adjacent to it; – Establishes the principles of criminal liability for the crimes made by several persons; – Defines features of purpose of punishment to each of types of accomplices of a crime. 2. Types and partnership forms In a basis of division of partnership on types distinction in nature of behavior of accomplices of a crime is necessary. In this regard allocate simple partnership (about performance) and difficult partnership. Degree of coherence of accomplices of a crime is put in a basis of division of partnership on forms. In this regard allocate partnership with the preliminary agreement and partnership without the preliminary agreement. Forms and types of partnership are closely interconnected as at the same time both influence qualification, and define character and degree of public danger of criminal activity of accomplices. Simple partnership is a type of partnership at which each of participants of a crime carries out its objective party. In this case all accomplices admit performers therefore simple partnership is called still as a co-doing. Difficult partnership is characterized by cast between certain participants of a crime. The performer is the person who was directly committing a crime or directly participating in its commission together with other persons, and also the person who has committed a crime by means of use of other persons, not subject to criminal liability owing to the age, diminished responsibility or other circumstances provided by the Criminal code of RK (mediocre performance). If the performer didn’t manage to finish a crime on circumstances not depending on it, other accomplices bear responsibility for preparation or attempt at a crime. 54

The organizer is the person organized commission of crime or directing its execution, and the person who has created organized group or criminal community (the criminal organization) or directing them is equal. The organizer is most dangerous of all accomplices of a crime as from it the initiative of commission of crime proceeds. Therefore the law establishes the increased the responsibility organizer: it bears responsibility for all crimes made by members of organized group if these crimes were covered by his intention. The instigator is the person which has inclined other person to commission of crime by an arrangement, bribery, threat or in a different way. Instigation has to be expressed in concrete forms when the incited has a clear view, what crime it induce to make. The general appeals to commission of socially dangerous act, not addressed to the particular person, aren’t instigation. If the instigator didn’t manage for the reasons not depending on it to incline the person to commission of crime, it will bear responsibility for preparation for a crime. The helper is the person promoting commission of crime. Complicity can be: – Physical which is expressed in commission of actions of the material character promoting performance of the objective party of a crime by the performer: granting tools and means of a crime, removal of obstacles, etc.; – Intellectual, representing mental impact of the helper on the performer in the form of councils, instructions, in providing information, in advance promised concealment, etc. Unlike the instigator the helper doesn’t raise at the performer of determination to commit a crime, it only strengthens and supports it. Partnership without the preliminary agreement is the first form of partnership. It happens when the crime is committed by a group of persons, that is two or more performers without preliminary arrangement. It is the least dangerous form of partnership as its participants in advance specially don’t agree about time, a way, a place, object, etc. the criminal encroachment therefore coherence of actions of accomplices in this case is minimum. Arrangement at such form of partnership is excluded, it can arise only already in the course of commission of socially dangerous act. This form of partnership can be only in the form of a co-doing. 55

Partnership with the preliminary agreement is the second form of partnership that takes place in that case when participants in advance, that is even prior to commission of crime, agree about its joint commission. Versions of this form of partnership are the following: – commission of crime by a group of persons on preliminary arrangement. Such partnership can be combined both with a co-doing, and with a difficult type of partnership, however for it participation in a crime of, at least, two performers as in the law it is spoken about a group of persons is obligatory. Arrangement can be expressed in different forms: verbally, in writing, in acquiescence, commission of tacit actions, etc.; – commission of crime by the organized group which is understood as the steady group of persons, in advance united for commission one or several crimes. Signs of the organized group are: a) the stability, being characterized duration and constancy of communications between members of group, existence of the plan of criminal activity, rigid discipline, equipment the weapon and equipment, etc.; b) special purpose of creation of group: commission of one or more crime; – commission of crime by the transnational organized group which is understood as the steady group of persons, in advance united for commission one or several crimes in the territory of two and more states, or in one state, but its preparation, planning, the management or consequences take place in other state or in one state, but with participation of citizens of other states. – commission of crime by criminal community which the solid organized group created for commission of heavy or especially serious crimes is. The main sign of criminal community is unity. Unity means the highest degree of coherence between participants of community which is characterized by the cast, difficult internal structure of community, careful conspiracy and isolation of group from society, stability of structure. Important sign of community is also the special purpose of its creation – commission of heavy or especially serious crimes. 56

The crime admits perfect criminal community (the criminal organization) if it is made by the association of the organized groups created for commission of one or several crimes. The crime admits perfect transnational criminal community (the transnational criminal organization) if it is made by the association of the organized groups created for commission of one or several crimes in the territory of two and more states, or in one state, but its preparation, planning, the management or consequences take place in other state or in one state, but with participation of citizens of other states. Considering the increased danger of this version of partnership, the legislator specially established that creation of the organized group in the cases which haven’t been provided by articles of Special part of the Criminal code attracts criminal liability for preparation for those crimes for which commission it is created. All listed types of partnership are the circumstances aggravating criminal liability (p. «c» of Art. 54 of CC of RK).

Chapter 11 Plurality of crimes 1. Concept and signs of plurality of crimes 2. Forms of plurality of crimes

1. Concept and signs of plurality of crimes Plurality of crimes is a commission by the person of two or more crimes irrespective of, it was exposed earlier to condemnation for them or not. Plurality signs: – commission by the person not less than two independent crimes; – each of the committed crimes keeps the legal value, that is yet didn’t expire limitation periods of criminal prosecution or isn’t removed the criminal record isn’t extinguished), there is no amnesty or pardon act, etc.; – each crime is established by court in the sentence. If the person even made socially dangerous act, however criminal case concerning it was stopped at a stage of preliminary investigation or in court, it is considered not committed a crime; – each of crimes can be both ended, and unfinished. Plurality of crimes differs from single difficult crimes as which continued, lasting and compound crimes act. 1) The continued crime is a single crime which is directed on one object and is made by a number of the identical actions united by a common goal and uniform intention (for example, theft of details for collecting the desktop computer). 2) The continuing crime is what proceeds continuously. In this case socially dangerous act has nature of process, however remains to one (for example, desertion, escape). The lasting crime or an appearance with guilty, or suppression by its competent authorities comes to an end. 3) The compound crime develops of two independent actions, each of which is provided by the criminal law as an independent crime. For example, robbery is a robbery + infliction of harm to health. However in 58

view of the internal unity and interrelation these actions at association form one compound crime which doesn’t belong to plurality. The acts made by one action belong to compound crimes, however entailed two and more independent consequences also. 2. Forms of plurality of crimes Forms of plurality of crimes are allocated depending on structure of socially dangerous act. The criminal law distinguishes three forms of plurality: repeatedly; set; relapse. Repeatedly of a crime is a commission of two or more acts provided by the same article or part of article of Special part of the Criminal code. Repeatedly is formed by identical crimes, that is acts which coincide both on objective, and on subjective signs (two robberies, two murders, two thefts, etc.). The criminal law establishes that in cases when repeatedly of crimes is provided by the Criminal code as the circumstance attracting more strict punishment, the crimes committed by the person are qualified by the corresponding part of the Criminal code providing punishment for repeatedly of crimes. Such situation strengthens criminal liability for the most serious and widespread crimes. The set of crimes is a commission of two or more crimes, of which the person wasn’t condemned for one, except for cases when commission of two or more crimes is provided by articles of Special part of CC of RK as the circumstance attracting more strict punishment. Signs of set of crimes: – commission of two or more crimes; – each crime is qualified by different articles or different parts of the same article of the Criminal code; – all crimes are committed by the person before its condemnation at least for one of them. Two types of set of crimes differ: real and ideal. Real set is a commission by the person by different independent acts of two or more crimes. Such set should be distinguished from the rule of the competition of criminal rules of law according to which if the crime is provided by the general and special norms, set of crimes is absent and criminal liability comes only on special norm. 59

Ideal set is a commission by the person of one act containing signs of crimes, provided by two or more articles of the Criminal code. Example of ideal set is deliberate deprivation of life at robbery (Art. 96 taking into account CC RK Art. 179). Relapse is a commission of a deliberate crime by the person having a criminal record for earlier made deliberate act. Relapse signs: – existence not less than two independent crimes; – the crime is committed in the form of intention; – existence of not removed (outstanding) criminal record. Distinguish three types of relapse: simple, dangerous and especially dangerous. Simple relapse commission of any deliberate crime by the person having a criminal record for earlier made deliberate act admits. Dangerous relapse commission by the person admits: – deliberate crime for which it is condemned to imprisonment if earlier this person two times were condemned to imprisonment for a deliberate crime; – Serious crime if earlier it was condemned for serious crime. Especially dangerous relapse commission by the person admits: – deliberate crime for which it is condemned to imprisonment if earlier this person not less than three times were condemned to imprisonmet for serious crimes or deliberate crimes of average weight; – serious crime for which it is condemned to imprisonment if earlier this person was twice condemned to imprisonment for commission of serious crime or it was condemned for especially serious crime; – especially serious crime if earlier it was condemned for serious crime or especially serious crime. At recognition of relapse of crimes criminal records aren’t considered: – the crimes committed by the person till 18 years; – crimes, condemnation for which was considered conditional or on which the delay of execution of a sentence if conditional condemnation or a delay of execution of a sentence weren’t cancelled admitted and the person didn’t go for punishment serving to imprisonment places, and also the criminal records removed or extinguished CC of RK as it should be established to art. Relapse of crimes attracts more strict punishment on the basis and in the limits provided by CC of RK. 60

Chapter 12 The circumstances excluding crime of act 1. Concept and types of the circumstances excluding crime of act 2. Necessary defense 3. Infliction of harm at detention of the person who has committed a crime 4. Emergency 5. Implementation of operational search actions 6. Physical or mental coercion 7. Reasonable risk 8. Performance of the order or order

1. Concept and types of the circumstances excluding crime of act The circumstances excluding crime of act are the expedient actions directed on elimination of real threat, created for the public relations protected by the criminal law. The criminal code provides six circumstances, excluding act crime: necessary defense; infliction of harm at detention of the person who has committed a crime; emergency; implementation of operational search actions; physical or mental coercion; reasonable risk; performance of the order or order. The listed circumstances are characterized by a number of the general signs that allows considering them as uniform institute of criminal law. Under any circumstance specified in Art. 32-37 of CC, such infliction of harm to right-protected interests which falls under signs of this or that article of the Criminal Code takes place. Infliction of harm in considered cases is carried out as a result of the conscious and strongwilled behavior caused by existence of special conditions. Socially useful motivation (the exception makes physical or mental coercion) is inherent in the most part of circumstances. 61

Each of the circumstances excluding crime of act is limited to certain criteria of the legitimacy which violation involves criminal liability. 2. Necessary defense Necessary defense is a lawful protection by the person of the rights and interests or the rights and interests of other persons, societies or the states from socially dangerous encroachment by the compelled infliction of harm to the forward if excess of limits of necessary defense thus wasn’t allowed. The criminal law establishes conditions of legitimacy of necessary defense which share on the conditions relating to infringement, and of the conditions relating to protection. Encroachment has to be: – Socially dangerous, that is capable to do essential harm to the rights and interests of the personality, society or the state; – Presenting that is already begun, but yet not terminated. However, if based on the circumstances of a matter for the end of criminal encroachment defending the moment it wasn’t clear, the condition of necessary defense also takes place; – Valid. It means that criminal action has to exist really, in objective reality, and not just in imagination of the defending. If encroachment actually wasn’t, imaginary defense that is protection against a nonexistent crime is present. If it is established that at imaginary defense the person didn’t realize that in reality no encroachment is present, however based on the circumstances of a matter could and has to realize it, its actions are subject to qualification under articles of the Criminal code providing responsibility for infliction of harm on imprudence. The conditions relating to protection: – Protection not only own rights and interests, but also interests of other persons, and also society and the state is allowed. Thus such right belongs to the person irrespective of opportunity to avoid socially dangerous encroachment or to ask for the help other persons or authorities; – Harm is done only to the forward, but not the third parties; – Protection has to be timely, that is correspond on time to made socially dangerous encroachment; 62

– It shouldn’t be allowed excess of limits of necessary defense. Excess of limits of necessary defense only deliberate actions admit, is obvious not corresponding to character and degree of public danger of encroachment. 3. Infliction of harm at detention of the person who has committed a crime According to the Criminal code infliction of harm to the person who has committed a crime isn’t a crime, at its detention for bringing to authorities and suppression of possibility of commission of new crimes by it if other means to detain such person didn’t represent possible and thus wasn’t allowed excess of measures necessary for this purpose. Conditions of legitimacy of infliction of harm at detention of the criminal are: – commission by the crime perpetrator. Infliction of harm to the person who has made other offense (administrative, disciplinary, etc.), isn’t allowed and attracts criminal liability in accordance with general practice; – it is late and harmed only that person who made socially dangerous act; – the measures applied to detention of the person, are compelled, that is other means to detain the perpetrator didn’t represent possible; – the purpose of the actions harming detained, is its bringing in authorities and suppression of possibility of commission of new crimes by it; – the detention of the person is timely, that is not overdue; – at detention it wasn’t allowed excess of measures necessary for this purpose. Excess of the measures necessary for detention of the person, committed a crime, their obvious discrepancy to character and degree of public danger of the crime committed by the detained person and to circumstances of detention when obviously excessive harm not caused by a situation is needlessly caused to the person admits. However such excess involves criminal liability only in cases of deliberate infliction of harm. 63

4. Emergency Emergency is a special condition at which the person for prevention of the danger which is really menacing to interests of the personality, societies or the states, is compelled to harm other protected criminal law to the rights and interests. Conditions of legitimacy of the act of emergency share on the conditions relating to imminent danger, and on conditions of protection against it. The conditions relating to danger: – Sources of imminent danger can be the most various: spontaneous phenomena, malfunctions of mechanisms and vehicles, behavior of people and animals, physiological processes, diseases, etc.; – Danger has to be presenting, that is it directly threatens the objects protected by the criminal law, is capable to be realized at any time; – Reality of danger; – Danger couldn’t be eliminated with other means which haven’t been connected with infliction of harm to the third parties. Protection against danger has to conform to the following requirements: – Protection has to have a special purpose: it is directed on prevention still bigger harm; – as a result of protection harm is done to the third parties; – protection has to be timely; – it shouldn’t be allowed excess of limits of emergency. Excess of limits of emergency infliction of harm admits, is obvious not corresponding to character and degree of threatening danger and circumstances under which danger was eliminated when to the specified interests it was harmed equal or more considerable, than prevented. Such excess involves criminal liability only in cases of deliberate infliction of harm. 5. Implementation of operational search actions Isn’t a crime infliction of harm by the protected criminal law to interests as a result of performance of operational search actions by the employee of authorized government body or at the request of such body other person cooperating with this body if this act is made for the 64

purpose of prevention, identification, disclosure or investigation of the crimes committed by a group of persons, a group of persons on the preliminary arrangement, the organized group, criminal community (the criminal organization), the transnational organized group, transnational criminal community (the transnational criminal organization) or the steady armed group (gang). Conditions of legitimacy of implementation of operational search actions: – legality of carrying out operational search actions; – harmed there has to be less considerable, than an estimated harm from a crime; – impossibility of prevention, disclosure or investigation of crimes by other means which haven’t been connected with infliction of harm. 6. Physical or mental coercion Isn’t a crime infliction of harm by the protected criminal law to interests as a result of physical coercion if owing to such coercion the person couldn’t direct the actions (inaction). A physical coercion is a compulsion of the person to make any action or to refrain from its commission by causing to it injuries, drawing a beating, illegal imprisonment, etc. A mental coercion is an impact on the person by means of any threats which object can be life, health, honor and advantage, etc. The criminal law distinguishes two types of physical coercion: surmountable and insuperable. The mental coercion is surmountable always. At insuperable physical coercion the person completely loses opportunity to direct the actions therefore in this case criminal liability is excluded. The circumstance excluding crime of act is present. If the person harms the protected criminal law to interests as a result of mental coercion, and also as a result of physical coercion owing to which the person kept opportunity to direct the actions, the issue of criminal liability of the person is resolved by rules about emergency. Therefore criminal liability is in this situation excluded only if the prevented harm is big, than caused. Otherwise there comes the criminal liability, however the applied to person physical or mental coercion will be considered as the circumstance commuting punishment. 65

7. Reasonable risk The criminal code establishes for the first time that infliction of harm by the protected criminal law to interests isn’t a crime at reasonable risk for achievement of socially useful purpose. The criteria of validity of risk are the following: – application of risk is caused by achievement only socially useful purposes; – such goal couldn’t be reached by the actions (inaction) not connected with risk; – the person accepted all sufficient, in his opinion, measures for prevention of infliction of harm by the protected law to interests. The risk doesn’t admit reasonable if it was obviously interfaced to threat for life of many people or to threat of ecological accident or public disaster. Such rule is caused by deterioration of an ecological situation in the country. Commission of crime at violation of conditions (criteria) of reasonable risk is the circumstance commuting punishment. 8. Performance of the order or order The criminal code provides that infliction of harm by the protected criminal law to interests the person acting in pursuance of obligatory for it of the order or the order isn’t a crime. Criminal liability for causing such harm is born by the person who has given the illegal order or the order. Conditions of legitimacy of the act made in pursuance of the order, the following is: – the issued order or the order are obligatory for the person who executes them; – the order is issued in due form (with requisites) and the appropriate person; – absence at the performer of awareness of illegality of the issued order or the order. The person, who has committed a deliberate crime in pursuance of obviously illegal of the order or the order, bears criminal responsibility in accordance with general practice. In this case partnership with division of roles is present. The non-execution obviously illegal the order or the order excludes criminal liability. 66

Chapter 13 Concept of punishment and its purpose

1. Concept of punishment 2. Punishment purposes 3. System of punishments

1. Concept of punishment Punishment is the measure of the state coercion appointed on a sentence vessel. Punishment is applied to the person found guilty of commission of crime, and consists in the deprivation provided by the Criminal code or restriction of the rights and freedoms of this person. Signs of criminal punishment: – the basis of its appointment is only commission by the person of a crime; – has public character: punishment is appointed on behalf of the state; – has strictly personal character: punishment is applied only to the person who has committed a crime; – it is appointed only on the sentence of the court which has entered validity. 2. Punishment purposes The criminal law provides the following purposes of punishment: The restoration of social justice. It means that punishment application to the perpetrator restores broken as a result of commission of criminal action personal and public interests. The correction of the condemned. This purpose is directed on change of negative valuable orientations guilty therefore the person starts realizing need of observance of the criminal law. Correction of the condemned is reached in case he any more doesn’t commit further new crimes therefore this purpose call still the special prevention; 67

The prevention of commission of new crimes. This purpose concerns to persons to whom punishment wasn’t applied yet. It is reached by establishment of criminal liability for each committed crime and ensuring reality and inevitability of appointment and an execution of the punishment. The purpose of criminal punishment isn’t causing physical sufferings to the perpetrator or humiliation of its human dignity.

3. System of punishments The system of punishments is the exhaustive list of types of the punishments located in a certain order established by the criminal law. The list of types of punishments is constructed depending on weight of punishments: from less strict to more strict. Punishments can be three categories: only the main; only the additional; punishments which can be appointed both as the main and as additional. The main punishments are punishments which can be appointed as independent and can’t be applied as additional punishments to other types. The main punishments are always provided in the sanction of the criminal rule of law. The criminal code carries only to main types of punishments: corrective works; restriction on military service; freedom restriction; the contents on a guardroom; imprisonment for a certain term; lifelong imprisonment; death penalty. Additional punishments can’t be appointed independently, they only can join the main, strengthening thereby weight of applied criminal punishment. Only additional punishments treat: deprivation of a special, military or honorary title, class rank, diplomatic rank, qualification class or state awards; property confiscation. The criminal code provides the following punishments which are capable to carry out a role as the main and additional punishment. Such universal punishments treat: penalty, deprivation of the right to hold a certain position or to be engaged in a certain activity, attraction to public works. 68

Chapter 14 Types of punishments

1. Penalty 2. Deprivation of the right to hold a certain position or to be engaged in a certain activity 3. Attraction to public works 4. Corrective works 5. Restriction on military service 6. restriction of freedom 7. The contents on a guardroom 8. Imprisonment for a certain term 9. Lifelong imprisonment is established 10. The death penalty 11. Deprivation of a special, military or honorary title, cool rank, diplomatic rank, qualification class or state awards 12. Property confiscation

1. The penalty is the monetary collecting appointed in limits, provided by the Criminal code of RK, in a size corresponding to a certain quantity of monthly settlement indicators, established by the legislation and operating at the time of purpose of punishment. The penalty is established in the amount of twenty five to twenty thousand monthly settlement indicators. The size of a penalty is defined by court with weight of the committed crime and with a property status condemned. In case of malicious evasion from penalty payment it is replaced with attraction to public works, corrective works at the rate of respectively one month of corrective works, or eighty hours of attraction to public works, for the penalty sum according to the triple size of a monthly settlement indicator. Malicious evasion is deliberate actions guilty, directed on concealment of the property, residence change, granting obviously false information, etc. for release from payment of the penalty appointed to it. 69

2. Deprivation of the right to hold a certain position or to be engaged in a certain activity Сonsists in prohibition to hold positions in public service, in local governments or to be engaged in certain professional or other activity. Professional activity is a performance on a constant basis of the work demanding special knowledge, a profession (the lawyer, the accountant, the doctor). Other activity is, for example, hunting, private transportations and other rather regular job. Deprivation of the right to hold certain positions or to be engaged in a certain activity is established for a period of one year till five years as a main type of punishment and for a period of six months till three years as an auxiliary view of punishment. Deprivation of the right to hold certain positions or be engaged in a certain activity can be appointed as an auxiliary view of punishment and in cases when it isn’t provided by the relevant article of Special part of the Criminal code as punishment for the corresponding crime if taking into account character and degree of public danger of the committed crime and the personality guilty the court recognizes impossible right preservation behind it to hold certain positions or to be engaged in a certain activity. In case of purpose of this type of punishment as additional to attraction to public works, corrective works, and also at conditional condemnation its term is estimated from the moment of the introduction of a sentence of court in validity. In case of purpose of deprivation of the right to hold certain positions or to be engaged in the defined activity as an auxiliary view of punishment to freedom restriction, the contents on a guardroom, to imprisonment it extends on all the time of serving of the specified main types of punishments, but thus its term is estimated from the moment of their departure. 3. Attraction to public works Public works consist in performance condemned in free from the main work or study time of the free socially useful works which look is defined by local governments. 70

Public works are established for a period of sixty till two hundred and forty hours and not over four hours in day are served. In case of malicious evasion condemned from serving of public works they are replaced with restriction of freedom or imprisonment. Time, during which the condemned served public works, is considered at definition of term of restriction of freedom or imprisonment at the rate of one day of restriction of freedom or imprisonments of arrest for four hours of public works. According to the Criminal and executive code of RK evasion admits malicious if condemned more than two times within a month didn’t come for public works without valid excuse or more than two times within a month broke labor discipline. Evasion is malicious also in case condemned disappeared for evasion from punishment serving (the Art. 34 PC of RK). Public works aren’t appointed: serviceman; to women, at the age of over fifty eight years; to the men, over six ten three years; to pregnant women; to the women having children under three years; to the persons recognized as disabled people of the first or second group. 4. Corrective works Сonsist in compulsory attraction condemned to work in the main place of its work with deduction in the income of the state of a certain share from its earnings in a size established by a sentence vessels, but ranging from five to twenty percent. In case of malicious evasion from serving of punishment by the person condemned to corrective works, the court can replace unexpired punishment by restriction of freedom or imprisonment with the same term. Evasion admits malicious if condemned repeatedly I allowed violation of an order and conditions of serving of punishment after the announcement to it preventions in writing (for example, a repeated truancy or repeated absence for works) and also if the condemned disappeared from a place of the residence and thus its new location isn’t known. In time punishments it isn’t set off: – Time during which the condemned didn’t work (except an ill – ess); 71

– Illness time if it was caused alcoholic or narcotic – intoxication; – Time of serving of an administrative penalty in the form of arrest or corrective works; – Time of the maintenance of the perpetrator under guards as a measure of restraint on another matter during punishment serving. 5. Restriction on military service is appointed to the condemned military personnel passing military service on the contract, and also the officers passing a military service for a period of three months till two years in cases, provided by the relevant articles of Special part of the Criminal code of RK for commission of crimes against military service, and also to the condemned military personnel passing military service on the contract, instead of the corrective works provided by the relevant articles of Special part of the Criminal code of RK. Thus from the monetary contents condemned to restriction on military service deduction in the state income in a size established by a sentence vessels, but not over twenty percent are made. During serving of this punishment the condemned can’t be raised in a position, a military rank, and term of punishment isn’t set off in time lengths of service for assignment of the next military rank. This punishment can’t consist in fall condemned in a position. 6. Restriction of freedom Сonsists in imposing on condemned by court of the certain duties limiting its freedom, and is left in a place of its residence under the supervision of specialized body without isolation from society by term from one to seven years. In case of replacement of attraction to public works or corrective works as freedom restriction it can be appointed to term less than one year. Court, appointing punishment in the form of freedom restriction, assigns on condemned fulfillment of duties: not to change a constant residence, work and study without notice specialized body, not to visit certain places, in free from study and work time not to leave a resi72

dence, not to leave to other districts without the permission of specialized body. The court can assign on condemned to freedom restriction execution and other duties promoting its correction: to receive medical treatment for alcoholism, drug addiction, toxicomania, diseases, sexually transmitted, to carry out material support of a family. In case of malicious evasion from serving of punishment by the person condemned to restriction of freedom, the court can replace unexpired term of restriction of freedom with punishment in the form of imprisonment with the same term. Thus time of departure of restriction of freedom is set off in time imprisonments at the rate of one day of imprisonment in one day of restriction of freedom. Evasion admits malicious: – If condemned out of time without valid excuse returned from holiday or a rest venue to days off and holidays; – Refused performance of legal requirements; – I left a place of work or a residence, a study place. Restriction of freedom isn’t appointed: to the persons having a criminal record for commission of heavy or especially serious crime, to the military personnel, and also to the persons which aren’t taking a constant residence. 7. The contents on a guardroom Сonsist in the maintenance of the condemned serviceman in the conditions of strict isolation from society for all term of the appointed punishment. This punishment is established for a period of one about three months in the cases provided by the relevant articles of Special part of the Criminal code for commission of crimes against military service. Time of stay of the serviceman on a guardroom isn’t set off in time active duty. 8. Imprisonment for a certain term is an isolation condemned from society by its direction in a colony settlement or rooms in a corrective colony of the general, high or particular treatment or in prison. The persons condemned to imprisonment, but not reached by the time of removal by court of a sentence 73

of eighteen-year age, are located in educational colonies of the general or strengthened mode. Imprisonment is established for a period of six months till twenty years, thus in case of replacement of corrective works or freedom restriction with imprisonment it can be appointed and for the term of less than six months. In case of partial or full addition of terms of imprisonment at purpose of punishments on set of crimes the maximum term of imprisonment can’t be more than twenty five years and on set of sentences – more than thirty years. The criminal code provides rules of definition by court of a type of correctional facility in what the condemned will serve the sentence appointed to it. Serving of imprisonment is appointed: a) to the persons condemned for crimes, made on imprudence to imprisonment, and also for the first time condemned for commission of a deliberate crime for which punishment to imprisonment for a period of up to one year – in colonies settlements is appointed; b) to the persons for the first time condemned to imprisonment for the term of over one year for commission of deliberate crimes of small or average weight and serious crimes, and persons to whom attraction to public works, corrective works or restriction of freedom are replaced with imprisonment for a period of up to six months – in corrective standard regime penal colonies; c) to the persons for the first time condemned to imprisonment for commission of especially serious crimes, and also at relapse of crimes if condemned earlier served imprisonment, and to women at especially dangerous relapse of crimes – in corrective colonies of a high security; d) at especially dangerous relapse of crimes, and also to the persons condemned to lifelong imprisonment, – in corrective colonies of a particular treatment. To the persons condemned to imprisonment for the term of over five years for commission of especially serious crimes, and also at especially dangerous relapse of crimes, serving of part of term of punishment, but no more than five years, in prison can be appointed. Change of a type of the correctional facility appointed a sentence, is made by court according to the criminal and executive legislation of the Republic of Kazakhstan. 74

9. Lifelong imprisonment is established only as alternative of the death penalty for commission of especially serious crimes encroaching on life, and can be appointed in cases when the court will find it possible not to apply the death penalty. Lifelong imprisonment isn’t appointed to women, and also the persons who have committed crimes aged till eighteen years, and the men who have reached by the time of adjudgement of sixty-five-year age. The persons condemned to lifelong imprisonment, serve sentence in corrective colonies of a particular treatment. 10. The death penalty Аs an exceptional measure of punishment consists in deprivation of life condemned by a way It can be established by court for especially serious crimes, the Criminal code of RK provides 18 such structures. The death penalty isn’t appointed: to women, and also the persons who have committed a crime aged till eighteen years, and the men who have reached by the time of removal by court of a sentence of sixtyfive-year age. The criminal law provides possibility of replacement of mortal execution as pardon lifelong imprisonment or imprisonment for term twenty five years. 11. Deprivation of a special, military or honorary title, class rank, diplomatic rank, qualification class or the state awards Аs a type of punishment can be appointed by court taking into account the personality guilty. Special ranks and class ranks are appropriated to persons who pass public service in such bodies as the Ministry of Internal Affairs, prosecutor’s office, the Ministry of Foreign Affairs, on water, air, railway transport, etc. This punishment can’t be applied concerning the ranks confirming high professionalism of the perpetrator: scientific degrees and ranks, sports ranks (master of sports, etc.). 75

Military ranks are specified and appropriated according to the law RK “About a Conscription and Military Service” of 08.07.2005. Honorary titles are appropriated for big merits in the field of science, arts, cultures, at commission of a heroic act, etc. For example, “The deserved lawyer of RK”, “The national actor”, “Halykkakharmany”. The state awards are awards, a medal, signs of distinctions of RK, etc. 12. Confiscation of property is a compulsory gratuitous withdrawal in property of the state of all or part of the property being property condemned, and also the property being the tool or means of commission of crime. Confiscation of property is established for the crimes made from mercenary motives, and can be appointed only in the cases provided by the relevant articles of Special part of the Criminal code. The criminal law establishes that the property necessary for condemned or persons, being in its dependence, according to the list provided by the Criminal and executive code of RK isn’t subject to confiscation.

Chapter 15 Procedure of sentencing

1. General principles of sentencing 2. Extenuating and aggravating circumstances 3. More lenient sentencing, than envisaged for the specific punishment 4. Sentencing for inchoate crime 5. Sentencing for participation in crime 6. Sentencing by repetition of a crime 7. Sentencing under the rules for cumulative crime or verdicts 8. Determination of punishment terms and punishment setoff

1. General principles of sentencing General principles of sentencing are main provisions, criterions, which the court shall follow during sentencing. Its compliance ensures just sentencing, that is to say lawful and justified. This can be achieved on the assumption of compliance of the requirements of general principles of sentencing by the court: − the court imposes punishment only within the ambit, envisaged by the relevant article of the Special Part of the Criminal Code with due regard for the provisions of the general part; − the court may choose more severe type of punishment from among the punishments, envisaged for the committed crime only in case, if less severe type of punishment is not able to provide achievement of the punishment purposes; − more severe punishment, than envisaged by the relevant articles of the Special Part of the Criminal Code for the committed crime, may be imposed only in case of cumulative crime and cumulative sentences; − exceptional circumstances, including extenuating are the sinews of the less stiff sentencing by the court, than envisaged by the relevant articles of the special part of the criminal code for the committed crime; − the court by sentencing shall consider the nature and degree of social danger of the punishment and personality of the guilty person, including extenuating and aggravating circumstances,as well as influ77

ence of imposed punishment on reformation of a criminal and on living conditions of his family. 2. Extenuating and aggravating circumstances Extenuating circumstances are the following:crimes of little gravity, committed for the first time, due to accidental coincidence; minority status of the criminal, pregnancy, if a criminal has infants; rendering of medical and other assistance to the complainant just after commission of the crime, voluntary compensation of material and nonpecuniary damage, caused as a result of crime, other actions, directed at the expiation of the damage, caused by the crime, crime commission due to combination of adverse personal, family or other circumstances or on grounds of compassion; crime commission as a result of physical or mental constraint or due to material, official or other dependence, crime commission by breach of terms of legality of justifiable defense, extreme necessity, detention of a person, justifiable risk, execution of an order or regulation during performance of special investigation activities, illegality or moral turpitude of the complainant, which has been the cause for the crime, sincere repentance, acknowledgement of guilt, active assistance in the discovery of the crime, accusation of the other conspirators of crime, search for depreciated property, obtained as a result of the crime. The above list of circumstances, extenuating punishment, is not complete, so that the court by sentencing is able to consider other circumstances as extenuating circumstances. The Criminal Code specifies the rule that if the extenuating circumstance is provided by the relevant article of the Special Part of the Criminal Code as the constituent element of the crime, then it cannot on its own terms be repeatedly considered by sentencing. In case of such extenuating circumstances, as rendering of medical assistance or other assistance to the complainant just after commission of the crime, voluntary compensation of material and non-pecuniary damage, caused as a result of the crime, other actions, directed at the expiation of the damage, caused by the crime, sincere repentance, acknowledgement of guilt, active assistance in the discovery of the crime, accusation of the other conspirators of crime, search for depreciated 78

property, obtained as a result of the crime and lack of aggravating circumstances, then the term and amount of punishment by commission of the crime of little gravity, average gravity cannot exceed the half, by commission of grave crime – two thirds, by commission of high crime – three quarters of the maximum term or amount of the stiffest type of punishment, provided by the relevant article of the Special Part of the Criminal Code.. If penalty of the article of the Special Part, according to which the person has been returned guilty, provides different (alternative) types of punishment, in case of extenuating punishment, specified in part 1 of the article 53 of the Criminal Code of the Republic of Kazakhstan, confinement for the crimes of little and average gravity is not imposed. If the penalty of the article, provided by article 7 (Crimes in the field of economic activity) of the Criminal Code, according to which the person was returned guilty, provides different (alternative) types of punishment, confinement is not impose in case of voluntary full property damages, caused to the citizen, organization or government due to the crime. Extenuating circumstances: Commission of the crime of little gravity for the first time due to coincidence. The person is regarded as committed crime for the first time, if it had not committed crimes before or if he had committed crimes, but to the moment of new crime commission period of limitation of indictment for the previous socially dangerous act had expired, conviction had been cancelled or removed from the official record, period of limitation of execution of the judgment had been expired. Coincidence is the evaluation category and is defined by the court. For example, unexpected entering of the person into the company of criminals, when it is forced unwillingly to participate in any criminal act, or commission of acts by the person, not typical for him, as law abiding right-minding citizen, can be included in this category. Minority status of the guilty person. In accordance with the criminal law the person can be considered as minor, if it turned fourteen, but not yet eighteen, to the moment of crime commission. At this age consciousness (mind) of a person is being molded, and so it is not always able to adequately evaluate existing 79

situation, it often comes under influence of other people and etc. Criminal law could not avoid considering such factors. Pregnancy Such circumstance is the demonstration of the principle of humanity of the criminal law and is stipulated by care both of an unborn child’s and his mother’s health. Children of the guilty person. Child is recognized as minor if he is under fourteen, furthermore, use of such extenuation circumstances is possible in case, if the guilty person has only one child of such age. Specified circumstance cannot be extenuated, if the guilty person has been deprived of parental rights, for long time doesn’t live with the family, doesn’t breed children, doesn’t materially support them, oppressively treats them, or committed criminal actions with regards to children. Guilty person’s actions, such as rendering of medical assistance or other assistance to the complainant directly after commission of the crime, voluntary compensation of material damage and non-pecuniary damage, caused as a result of the crime, other actions, directed at the expiation of the damage, caused by the crime, to the concomitant testify on the less risk of the guilty person. Specified circumstances testify on penitential of the guilty person in his offense and may be considered as extenuating circumstances. Commission of the crime by virtue of conjunction of reduced life circumstances or on grounds of compassion. Reduced life circumstances may be expressed in serious disease of the guilty person or his relatives, in severe material and housing conditions, conflicts in family and etc. Nevertheless, reduced life circumstances must be compulsorily concerned with that crime, which was committed (for example, the person pays a bribe with the view of fastest improvement of his bad housing conditions). Otherwise, extenuation circumstances are absent. Commission of the crime as a result of physical and mental constraint or due to material, official or other dependence may be considered as the extenuating circumstance, only in the case, when such dependence or constraint is found substantial by the court, and actions of the constrained person are constrained, as his will, generally, is sup80

pressed by wrongdoings. If the person could not withstand physical or mental coercion, responsibility and punishment are excluded. Mental coercion may be expressed in the threat of bodily injury, extortion, dissemination of honor, dignity and business reputation discrediting information. Such influence on the person, which is associated with beatings and bodily injury infliction, property destruction can be recognized as physical coercion. Both physical and mental coercion may be made not only in respect of the guilty person itself, but in respect of his relatives and family. Material dependence, is admitted as such when it is established that guilty person committed crime in the interests (most commonly illicit) of the person, which financially supports him, provides money, clothes, food to him (parents, foster parents, close relatives). Reasons of official dependence is, generally, subordination of one person to the other (head of the company constrains the accountant to commit theft of funds, threatening to discharge her). Other dependence may occur in any situation and different fields of activity (extortion for granting the order for the flat; criminalization under the threat of sexual relationship disclosure; coercion to make false evidence with covenants to stop criminal investigation and etc.). As opposed to physical and mental constraint as circumstances, excluding criminality of action, in this case guilty person had an opportunity to be in control of his actions and confront criminal actions, however he had not done this by any reason. In the meantime in this case the will of the person is in many respects suppressed, so its criminal action is less dangerous and is the basis for acknowledgment of constraint as extenuating circumstance. Commission of a crime in case of breach of terms of lawfulness of justifiable defense, confinement of the person, who committed crime, state of emergency, substantiated risk, execution of the order or regulation. These circumstances are acknowledged as extenuating circumstances, if they are not characteristic features of privileged components of crime (for example, homicide by exceeding limits of necessary defense). Illicitness of behavior or moral turpitude of the complainant, which has been the cause for commission of a crime. Illicitness of behavior means breach of legal provisions (criminal, administrative, labour and etc.) by the complainant. Moral turpitude of 81

the behavior lies in noncompliance of rules of morality, social norms and ethics and etc by the complainant. Specified behavior of the complainant may apply not only to the guilty person itself, but to his relatives. Acknowledgment of guilt, active assistance in the discovery of a crime, accusation of the other conspirators of a crime, search for depreciated property, obtained as a result of a crime. Acknowledgment of guilt – is voluntary disclosure of committed crime by the person to the law enforcement authorities. Acknowledgment of guilt is acknowledged as such, when voluntary disclosure of committed crime is made by the guilty person. Acknowledgment of guilt, executed by plea agreement, must not be accepted as extenuating circumstance. Active assistance in discovery of a crime, is expressed in the fact that the guilty person discloses information to investigating authorities, previously unknown to them, but useful in order to expose a crime, expose guilty persons and compensate damages (specifies the place of location of criminal instrument, assists in organization and conducting of investigatory experimentation, accounting expertise, produces physical evidence and etc.). Accusation of the other conspirators of a crime, search for depreciated property, obtained as a result of a crime, are all forms of active procurement of the guilty persons in exposure of a crime. In order to acknowledge specified circumstances as extenuating, it is important to define the condition of voluntary (but not under constraint of available evidence of crime) commission of these actions. Aggravating circumstances are:repeated crime, repetition of crime, infliction of grave consequences by a crime; commission of a crime within a group of persons, group of persons by previous concert, organized group, criminal conspiracy (organized crime), transnational organized group, transnational criminal conspiracy (transnational organized crime) or settled armed group (criminal gang), terrorist group; especially active part in commission of a crime; involvement of persons, who are suffering severe mental disorders designedly of the guilty person, or persons, under the age of criminal responsibility, to commission of a crime; commission of a crime on grounds of national, race and religious hatred, or strife, out of revenge for lawful actions of other per82

sons, as well with a view to suppress the crime or simplify its commission , commission of a crime against a woman, who is pregnant, with knowledge of the guilty person, as well against minor (up to 14 years), other defenseless or the helpless person or person, dependant from the guilty person, commission of a crime against person or his relatives due to discharge of its official, professional or social duty by the person; commission of a crime with special cruelty, sadism, mockery, as well as excruciation for the complainant; commission of a crime with use of weapon, ammunition, explosive substances or devices, imitating them, specially produced technical means, highly combustible and flammable liquids, poisonous or radioactive substances, medicinal and other chemical-pharmaceutical preparations, as well as with use of physical and mental constraint or socially dangerous method, commission of a crime with use conditions of emergency condition, natural disasters or other public disasters, as well as by riots, commission of a crime in the state of alcoholic, drug or inhalant intoxication. The court is entitled depending on the nature of the crime, not to recognize this circumstance as aggravating; commission of a crime by a person, who is in breach of administered oath or professional oath; commission of a crime with use of trust, rendered to the guilty person due to its official status or contract; commission of a crime with use of official uniform or documents of the public officer, commission of a crime by the public law enforcement official, judge with use of its official position. As contrasted with the list of extenuating circumstances, the list of aggravating circumstances is complete. Criminal law constitutes that if extenuating circumstance is provided by the relevant article of the Special Part of the Criminal Code as a sign of the crime, then it cannot be repeatedly covered by sentencing on its own terms. Several types of circumstances, aggravating punishment are as follows: Repeated crime, repetition of crime, are forms of multiple crime. Repeated crime – is commission of two or more actions, provided by the same part of the article of the special part of the criminal code. Repetition of crime is commission of intentional crime by the person, which had criminal record for the past intentional crime. Repeated 83

crime, repetition of crime are considered without fail as aggravating circumstances. Infliction of grave consequences by the crime is an evaluation sign, set up in the specific case with due regard to the whole set of circumstances of the case. This circumstance may be considered as aggravating circumstances, when it is not the constituent element of the appropriate components of crime. As a rule, the specified circumstance may be considered as aggravating punishment, when it is not the constituent element of the relevant components of crime. As a rule, the specified circumstance as aggravating circumstance is considered by commission of a formally defined crime. Severe consequences, not being the constituent element of the components of crime, must be without fail casually related to the committed crime by the person. Commission of the crime within a group of persons, group of persons by previous concert, of organized group, criminal conspiracy (organized crime), transnational organized group, transnational criminal conspiracy (transnational organized crime) or settled armed group (criminal gang), terrorist group shall be charged with the participants of these groups by sentencing. Especially active part by commission of a crime as aggravating circumstance is acknowledged with regards to the person, demonstrating the most active participation by commission of a crime. It may be demonstrated at any stage of commission of a crime and is revealed in aggressiveness, ingenuity of the person by commission of a crime. Involvement persons, who are suffering severe mental disorders designedly of the guilty person, or persons, under the age from which criminal responsibility appears This aggravating circumstance is related to the influence of the guilty person on persons, suffering severe mental disorders or persons, under the age of criminal responsibility. Commission of a crime involving specified persons may be covered by perpetration through an innocent person. In such cases the guilty person is the actual perpetrator of a crime, and involvement of these persons to commission of a crime is considered in case of sentencing as aggravating circumstance. Commission of a crime on grounds of national, race and religious hatred, or strife, out of revenge for lawful actions of other 84

persons, as well with a view to suppress the crime or simplify its commission. Article 14 of the Constitution of the RK sets forth that the government guarantees equality of rights and freedoms of a person and a citizen irrespective, in particular, of race, nationality and religious orientation. Aggravation of punishment for crime, committed on grounds of national, race and religious hatred, or strife Act for the most important guarantee of the specified rights. Out of revenge for lawful actions of other persons aggravates punishment, as the complainant hinders others to act lawfully, discharge their rights, freedom and liabilities. Commission of a crime with a view to suppress the crime or simplify its commission, aggravates punishment, as this refers to two offences, which have been committed, which should have been concealed or on perspective crime or crime in progress in order to facilitate its commission. Provided that the first crime shall not be without fail committed by the person, which committed the second crime with the view to conceal the first crime. Or otherwise, the first crime is being committed in order to commit the second, for example the person accidently turned out to be at the place of theft is being murdered to prevent him from preventing from commission of a crime. Commission of a crime against a woman, who is pregnant, with knowledge of the guilty person, as well against minor (up to 14 years), other defenseless or the helpless person or person, dependant from the guilty person. These circumstances aggravates punishment, as the criminal uses defenselessness of the specified persons, which lowers their ability to offer resistance to him, that certifies his extremely low ethical level. The guilty person should have known without fail on the occurrence of pregnancy, irrespective of its reckoning. Minors are children, under 14 years old. The issue whether the person, with regards to which the crime was committed, is in defenseless or helpless condition, shall be solved by the court with due regard to the fact if he was aware of the occurring and could he be able to offer resistance to the criminal. Defenseless and helpless condition may be caused by old age, disease and other circum85

stances. It will be considered irrespective of the fact, if this state of the complainant was caused by the criminal itself, for example use of gas, or arouse apart from him. Commission of a crime against person or his relatives due to discharge of official, professional or social duty by the person. Person discharging official activities is not only official or civil officer, but as well the person, discharging administrative and other functions in the commercial organization or in other forms, for example notary, private security or detective. Social duty discharge is socially useful activity of the person on his discharge of his legal and ethical obligations (for example, suppression of the crime in progress). The guilty person commits the crime aimed to hinder specified persons from carrying out their activity or duty out of revenge for such actions. Complainants are not only the persons, discharging official activities or discharging professional or social duty, but their relatives as well. Relatives are close relatives, friends, and other persons, in which destiny citizens, discharging official activities or professional, social functions are interested. Commission of a crime with special cruelty, sadism, mockery, as well as excruciation for the complainant; In order to acknowledge commission of a crime with special cruelty it is necessary to establish the fact that the guilty person was acting not just with cruelty, but precisely with special cruelty. Special cruelty characterizes the method of crime commission and personality of the guilty person (his exceptional mercilessness, despitefulness, ferocity. Such circumstances, including, but not limited to indifferent attitude to sufferings of the complainant and other persons (for example, torture of the mother in presence of her children), certify special cruelty. In some instances, dozens of wounds, use of torture, painfully impacting poison and etc certify special cruelty. The guilty person should be aware of the extremely cruel nature of the selected method, as well wish to use particularly such nature of commission of a crime by commission of a crime with special cruelty. Sadism should be interpreted as taste for outrage, satisfaction from humiliation and torture of others. Mockerymeans performance of actions, causing emotional distress 86

to the complainant. Infliction of special physical or moral torture by means of sustaining deprivation of food, water, leaving person in physically uncomfortable position during the long period of time, performance of acts of indecency with the complainant’s relatives within his sight can be acknowledged as mockery. Commission of a crime with use of weapon, ammunition, explosive substances or devices, imitating them, specially produced technical facilities, highly combustible and flammable liquids, poisonous or radioactive substances, medicinal and other chemicalpharmaceutical preparations, as well as with use of physical and mental constraint or socially dangerous method. Use of extremely dangerous instruments, which are fit, on the one hand, to sufficiently facilitate commission of a crime, and on the other hand, to cause considerable damage by the guilty person, shall be acknowledged as aggravating circumstance. Use of devices and facilities, which come laden with objective opportunity of infliction of grave consequences, enhance social danger of the crime and is the reason of its attribution to the number of aggravating circumstances. Several aggravating circumstances, similar mainly according to the devices, used by the guilty person to commit the crime, are combined in this paragraph: 1) Commission of the crime with use of weapon, ammunition, explosive substances or devices, imitating them. Weapon is interpreted in the law of the RK as of 30 December 1998 «On state control over the distribution of certain types of weapon» such as, devices and instruments, constructively designated for hitting the human target or other target, as well as signaling, and ammunition (bullets) is interpreted as devices and instruments, constructively designated for fire shot from the weapon of appropriate type and hitting the target. Devices, imitating explosive devices are related to the devices, imitating explosive devices, for example propellant-actuated device; 2) Commission of the crime with use ofspecially manufactured technical means. The latter are devices, devised by the person for facilitation of commission of a crime or for increasing its efficiency (jimmy to enter into flats, listening stabilizers for industrial or other espionage, on which counterfeit currency is printed and etc.); 3) Commissionof the crime with use of poisonous and radioactive 87

substances, medicinal and other chemical-pharmaceutical preparation. Poisonous substances are substances which cause intoxication and may cause death (acetic anhydride, sarin, snake venom,potash prussiate and etc.). Radioactive substances are interpreted in the law of the RK, dated 14 April 1997 «on the use of nuclear power» as materials, containing chemical elements, nuclear of which are imposed to spontaneous decay. Medicinal and other chemical-pharmaceutical preparations are substances, usually used in medical and pharmaceutical activity; 4) Commissionof the crime with use of physical or mental constraint. These notions were analyzed during consideration of extenuating circumstances. Commission of a crime with use conditions of emergency condition, natural disasters or other public disasters, as well as by riots. Term of emergency condition, is specified in the law, dated 8 February 2003 «on emergency condition». Regimen of emergency condition, is installed in case, when there are circumstances, directly threatening life or safety of citizens or constitutional form of government, and other measures, except for emergency, to eliminate these circumstances is impossible. Natural disaster is related to the natural forces and may include earthquakes, snow or other falls,avalanching, tsunami and etc. Other social disasters may differ in nature, for example related to disasters, the basis of which is formed by technical factor, train wrecks, buildings collapses and etc, or on the basis of any crime, not related to specially expressed in this paragraph riots, for example terrorism or hostage taking. Mass riots contemplate existence of wild mob, which doesn’t take dictation of the government and making arsons, massacre, other unlawful acts. Commission of a crime in the state of alcoholic, drug or inhalant intoxication under the current legislation is not considered as aggravating circumstance. 3. More lenient sentencing, than envisaged for the specified type of punishment is conceded by occurrence of exceptional circumstances, related to the purposes and motives of crime, role of the guilty person, his behavior during or after commission of the crime, as well as other cir88

cumstances, sufficiently decreasing degree of social risk, danger of the crime, as well by active concurrence of the participant of group crime to clear the crime. Both separate extenuating circumstances, and their components may be acknowledged as exceptional. Criminal law provides three variants of extenuation of the crime as follows: − Sentencing may be made lower than the lowest limit, envisaged by the appropriate section of the Special Part of the Criminal Code. In the meantime the court cannot exceed the bounds of minimal term, established by the Code for any type of punishment. For example, with respect to confinement this term for serving punishment is established for six months, so the court is not entitled to impose confinement for the term of less than six months. − The court may impose more lenient type of punishment, than envisaged by the appropriate section of the Special Part of the Criminal Code; − The court may not apply additional type of punishment, when it is envisaged as compulsory. 4. Sentencing for inchoate crime Sentencing for inchoate crime varies depending on the stage at which socially dangerous action was stopped. For preparation of crime the term or amount of punishment cannot exceed half of the maximum term or the amount of the most severe type of punishment, provided by the relative article of the Special Part of the Criminal Code for inchoate crime. In the meantime, criminal responsibility is imposed only for preparation of grave or extremely grave crime. For the attempt to commit a crime the term or amount of punishment cannot exceed three quarters of maximum term or amount of the severest type of punishment, provided by the relative article of the Special Part of the Criminal Code for inchoate crime. Moreover, Criminal Code prescribes also to consider circumstances due to which crime was not finished. Thus, acknowledgement of guilt, active assistance in the discovery of the crime, and etc are circumstances which the court must consider in case of sentencing. 89

Death penalty and life imprisonment are not assigned for crime and attempt to commit a crime. 5. Sentencing for participation in crime In case of sentencing for the crime, committed in fellowship, criminal law sets forth the court to consider the nature and degree of actual participation of the person in its commitment, meaning of this participation for achievement of the criminal intent, as well as its influence on the nature and amount of caused or possible damage. Participant’s commission of the criminal action, which was not comprised by the criminal intent of other participants (excessive act) is being the special circumstance, which is necessary to be considered by sentencing regarding the participants. For example, the conspirator did not commit theft, on which participants agreed, but homicide. In this case, the conspirator himself is responsible for the homicide, and participants are responsible only for those actions, which they realized (criminal intent). Extenuating or aggravating circumstances, which relate to the personality of one of the participants, are counted in case of sentencing only to this participant. 6. Sentencing in case of repetition of a crime Sentencing in case of repetition of crime must be based on mandatory record of: − number, nature and degree of social danger of the past crimes of the person; − circumstances, due to which correctional treatment of the past punishment proved to be insufficient; − nature and degree of social danger of re-committed crimes. The term of punishment in case of general repetition of crime cannot be lower than one thirds of the maximum term and amount of the most strict type of punishment, provided for the committed crime, in case of dangerous repetition of crime – not less than two thirds, and in case of specially dangerous repetition – not less than three quarters from the maximum term of the most severe type of punishment, envisaged for the committed crime. 90

If this section (part of the section ) of the Special Part of the Criminal Code contains indication on the criminal record of the person, who committed crime, as at the qualificatory constituent element, and as well by occurrence of exceptional circumstances, envisaged by the Criminal Code, sentencing in case of repetition of crime is made without regard to the provisions, provided by the second part of these regulations. 7. Sentencing under the rules for cumulative crime or verdicts Sentencing under the rules of cumulative crime: in case of cumulative crime punishment is assigned at first separately for each committed crime, and then with consideration of the cumulative final sentencing is made. The Criminal Code stipulates two methods (principles) of cumulative crime. If cumulative crimes are only the crime of little and average gravity, then the final sentencing is made by way of merger of less severe punishment by more severe punishment. If cumulative crime contains grave crime or especially grave crime, then final sentencing is made by way of merger of less severe punishment by more severe punishment or by way of partial or full cumulative sentencing. Furthermore, final sentencing in the form of imprisonment cannot exceed twenty years. If even one of the cumulative crimes is being the especially grave crimes, for commission of which punishment in the form of imprisonment for the term up to twenty years or death penalty or life imprisonment is envisaged, then final sentencing is made by way of partial or full cumulative sentencing. Furthermore, final sentencing in the form of confinement cannot exceed twenty five years. In this case use of only cumulative sentencing is admitted. In case of cumulative sentencing additional types of punishment may be added to main types of punishment. Final additional punishment by partial or full cumulative sentencing cannot exceed maximum term or amount, envisaged for the specified type of punishment by the General Part of the Criminal Code. Furthermore, additional punishment may be merged by main punishment, but cannot be accumulated with it, as it has independent meaning. Under the same regulations, sentencing is made if after the court 91

sentencing regarding the case it is established that convicted person is guilty in the other crime as well, committed by him before the court sentencing for the first case. In this case punishment, served by the first sentence of the court, is counted to the final sentence. Unserved part of punishment by the previous court verdict is acceded partially or fully to the punishment, assigned according to the last court verdict, in case of punishment assignment in case of cumulative sentencing. Thus, in case of sentencing by cumulative sentencing use of only the principle of full or partial cumulative sentencing is admitted. Terms of final sentencing are defined in two variants depending on the type of sentencing. If punishment is less severe, than imprisonment, then final cumulative sentencing cannot exceed maximum term or rate, envisaged for this type of punishment under the General Part of the Criminal Code. In case of cumulative sentencing in the form of imprisonment final sentencing cannot exceed thirty years. Final cumulative sentencing must be greater than sentencing for newly committed crime, and thanunserved part of punishment of the previous court verdict. Accumulation of additional types of sentencing in case of cumulative sentencing is made by the same rules, as in case of cumulative sentencing. 8. Determination of punishment terms and punishment setoff In order to make proper sentencing it is necessary to know the order of determination of terms of punishment by cumulative sentencing. By partial or full sentencing in case of repetition of crime and cumulative sentencing one day of imprisonment equals to: one day of imprisonment at large; two days of confinement; three days of correctional treatment or limitation of military service, four hours of community service. Penalty, deprivation of right to hold specific posts or to be engaged in specific activity, deprivation of special rank, military rank or title of honor, class rank, diplomatic rank, qualification rank and governmental awards, as well as forfeiture of property by their accumulation with limitation of freedom, correctional treatment, confinement are made independently. 92

By execution of sentences it is necessary to be familiar with rules of calculation of periods for punishment and punishment setoff. In accordance with the Criminal Code terms of deprivation of right to hold specific posts or be engaged in specific activity, correctional treatment, limitation of military service, limitation of freedom, imprisonment at large, imprisonment are amounted to months and years, and community service is amounted to hours. Furthermore, in case of substitution of the abovementioned punishment or its accumulation, as well as by setoff of punishment terms of punishment may be amounted to days. Time of custodian detention until verdict’s coming into legal force is set off to the term of punishment in the form of limitation of freedom, imprisonment at large on the basis of one day for one day in the form of limitation of freedom – one day for two days, correctional treatment and limitation of military service – one day per three days, and to the term of punishment in the form of community service – on the basis of one day of custodian detention for four hours of community service. Time of confinement to the flat until verdict’s coming into legal force is set off to the term of punishment in the form of limitation of freedom, imprisonment at large on the basis of two days for one day, in the form of limitation of freedom – one day for one day, correctional treatment and limitation of military service – one day per two days, and to the term of punishment in the form of community service – on the basis of one day of confinement to the flat for two hours of community service. Time of custodian detention until verdict’s coming into legal force and time of serving of limitation of freedom, assigned by the court verdict for the crime, committed outside the Republic of Kazakhstan, in case of extradition of the person on the basis of provisions of the Criminal Code are set off based on one day per one day. By sentencing in the form of penalty, deprivation of the right to hold specific posts or to be engaged in specific activity, to the convicted person, who is under custodian detention before the court hearing, the court, considering the term of custodian detention attenuates sentence or completely releases him from serving this punishment. Time during which compulsory measures of medical character applied to the person who came down with mental alienation after commission of the crime, is set off to the term of punishment. 93

Chapter 16 Conditional sentence

1. Concept of conditional sentence and its terms 2. Cancellation of conditional sentence or its extension 1. Concept of conditional sentence and its terms If, after assigning corrective works, restrictions on military service, imprisonment, the court comes to the conclusion that rehabilitation of convict can occur without punishment, it decides to consider the sentence imposed conditionally. Herewith the court shall consider the nature and degree of social danger of perpetrated crime, as well as guilty person individuality, including mitigating and aggravating circumstances. Criminal law permits the use of conditional sentence to all categories of crimes; however, it is clear that in respect of grave crime or felonies, it can be applied only in exceptional cases. Conditional sentence is provided only for the main forms of punishment, so any additional punishments shall be enforced only actually. In this case, decision of conditional sentence may be assigned with any type of additional punishments, other than forfeiture. Condemnation is considered conditional because in case of nonperformance it is associated with of certain requirements (conditions) for condemned person established by the criminal law. First, trial period is determined by the court with conditional sentence assignment, during which the conditionally convicted person must prove his correction by his behavior. The court, assigning conditional sentence, sets out probationary supervision, and it may require conditionally convicted person to perform certain obligations, such as − Do not change the place of residence, work, study, without proper notification of special state authorities carrying out the convict correction; 94

− Do not attend certain places (night clubs, discos, casinos and other institutions that may have a negative impact on the process of offender correction); − Undergo a course of treatment for alcoholism, drug addiction, toxicomania or venereal diseases; − Provide financial support for the family. The court may also impose on conditionally convicted person performance of other obligation that sustains its correction. Supervision of conditionally convicted person behavior is conducted by the special state authorities and in regards of military personnel by the command of military units and institutions. If conditionally convicted person has positive references during trial period the court can cancel completely or partially previously determined obligations for conditionally convicted person upon the application of authorities conducting conditionally convicted person supervision. If conditionally convicted person fails to perform his obligation, the court may supplement previously established obligations with new one. 2. Cancellation of conditional sentence or its extension Criminal law provides only one ground for extension of conditional sentence. If conditionally convicted person committed an administrative offense infringing public order and morals, rights of minors, on individual and in the sphere of family relations, for which it had been imposed with administrative punishment, willful damage (or deterioration) of electronic tracking facilities, as well as in case of non-attendance for registration purpose without valid reason, change of residence place without permission of the supervision authorities which monitors conditionally convicted person behavior, as well as in case of failure to perform obligations assigned by the court, the court may extend trial period and establish enhanced probationary supervision, but no longer than for one year upon supervision authorities’ application. Criminal law provides four grounds for repeal of conditional sentence: 1) If conditionally convicted person has proved his correction by his behavior before trial period expired, court may decide to repeal 95

conditional sentence and clear the convicted person of conviction upon supervision authorities’ application which monitors conditionally convicted person behavior. In this case, conditional sentence may be repealed only after at least half of determined trial period expire. 2) In case of repeated commission of any violations referred in Section 64 of the Criminal Code of the Republic of Kazakhstan, as well as contempt for the law requirements, as well as insults or threats to commit any acts of violence against members of supervision authorities which monitor conditionally convicted person behavior by conditionally convicted person within the trial period or if conditionally convicted person disappeared from the supervision the court shall decide to quash conditional sentence and execute the sentence established by the court verdict upon supervision authorities’ application. 3) In the case of persistent of crime of negligence or intentional minor offense by conditionally convicted person within the trial period issue of repeal or preservation of conditional sentence shall be considered by the court. 4) If conditionally convicted person committed premeditated crime of medium gravity, grave crime or felony within the trial period the court is obliged to cancel conditional sentence and impose punishment in accordance with rules established for cumulative sentences punishment assignment. The same rules are valid for punishment assignment in cases provided by the previous ground.

Chapter 17 Relief from criminal responsibility

1. Concept and types of relief from criminal responsibility 2. Relief from criminal responsibility in connection with guilty active repentance 3. Relief from criminal responsibility for exceeding limits of necessary defense 4. Relief from criminal responsibility in connection with the reconciliation of the offender with the victim 5. Relief from criminal responsibility due to change of situation 6. Relief from criminal responsibility in connection with the expiration of limitation period

1. Concept of relief from criminal responsibility Relief from criminal responsibility is relief of the person committed a crime from the obligation to undergo a court conviction from the part of the state in the form of a negative assessment of his actions. Procedural form of this relief is the act of authorized body to dismiss the criminal case if it was filed, or take decision not to initiate it, if the criminal case has not been filed yet. Relief from criminal responsibility applies only to the person committed the crime. Hereby it differs from the circumstances excepting criminality, as in the latter case there is no social danger of the acts and, therefore, elements essential to the offences (institutions of selfdefense, extremity and others). Relief from criminal responsibility is not an acquitment, rehabilitation of the person because criminal law is based on the fact of criminal offense conducted by the person under relevant article of the Criminal Code. The Criminal Code provides the following grounds (types) of relief from criminal responsibility: 1) Due to the guilty active repentance; 2) Exceeding limits of necessary defense; 97

3) In connection with the reconciliation of the offender with the victim; 4) Due to changes of situation; 5) In connection with the expiration of limitation period. The expiration of the limitation period and the act of amnesty shall be binding for the competent authorities. In these cases, they are obliged to relief a person from criminal responsibility and discontinue the criminal proceedings. 2. Relief from criminal responsibility in connection with the guilty active repentance The grounds when a person may be relieved from the criminal responsibility in connection with the active repentance are following: − commission of crime for the first time (including the cases when the person had a conviction previously, but it was cleared or quashed later); − committed socially dangerous act applies to misdemeanors or moderate crimes; − after committing the crime the offender voluntarily pled guilty, helped to solve the crime, made amends, or otherwise made up losses for the harm caused by the offense. If a person committed a crime of other category, in presence of the above conditions, it may be relieved from criminal responsibility only in cases specifically provided by the relevant articles of the Special Part of the Criminal Code (e.g., kidnapping). In this case, the competent authorities shall relief the person from the criminal responsibility. 3. Relief from criminal responsibility for exceeding limits of necessary defense A person exceeded the limits of self-defense as a result of fear, fright or embarrassment caused by socially dangerous encroachment, and also because of unexpected attack, may be relieved from the criminal responsibility by the court in consideration of the circumstances. 98

4. Relief from criminal responsibility in connection with the reconciliation of the offender with the victim Relief from criminal responsibility due to reconciliation with the victim is allowed only if the offender committed the offense for the first time, the offense is classified as of minor or medium gravity; reconciled with the victim, resulted in the form of denial of any claims from the victim part to the guilty party due process issued; made amends (compensated) for the harm caused to the victim. 5. Relief from criminal responsibility due to change of situation Relief from criminal responsibility due to changes of situation may, provided that: the offender committed a crime for the first time, crime is classified as of minor or medium gravity; it was established that as a result of circumstances change the offender or offense committed by him ceased to have public danger. Circumstances change means that as a result of a major change of objective nature occurred in the socio-economic and political life of the country or society, the act committed by the perpetrator has ceased to be dangerous for society (for example, withdrawal of the state of emergency). Circumstances change, due to which the act is no longer dangerous to society, can also be expressed in the change of specific, special conditions under which the act was criminal (place, time, etc.). Circumstances change due to which the offender is no longer dangerous to society, applies only to the conditions of life and work of a particular perpetrator occurred before and at the time of crime commission. 6. Relief from criminal responsibility in connection with expiration of limitation period Relief from criminal responsibility in connection with expiration of limitation period occurs if the following terms expired after crime commission date: 99

− two years after misdemeanor commission; − five years after medium gravity crime commission; − fifteen years after grave offence commission; − twenty years after felony commission. Limitation period is calculated from crime commission date and till court judgment enforceable. In case of new crime committed by the person a limitation period shall be calculated independently for each offense. If offender evaded the investigation or court, then the limitation period shall be suspended. In this case, limitation period shall be resumed from the moment of specified person arrest or his acknowledgment of guilt. Limitation period shall be interrupted if before the expiry date specified in Chapter 69 of Criminal Code perpetrator of grave crime or felony commits a new intentional crime. In such cases calculation of limitation period starts again from the date of new offense commission. For the general rule that expiration of limitations period precludes criminal responsibility, the Criminal Code makes an exception in respect of offenses punishable by death or life imprisonment. In this case the court shall take decision and if the court finds it possible to relief the offender from the criminal responsibility in connection with expiration of limitation period than it can assign him to imprisonment for specified period. However, the death penalty and life imprisonment are not applied in this case. Considering enormous risk of crimes such as crimes against the peace and security of mankind, terrorist crimes and felonies against the person and the constitutional order and security of the state in finance area, against the public safety and public order, the Criminal Code stipulates that limitation period shall not be applied for these crimes. This provision completely meets requirements of international law.

Chapter 18 Relief from punishment

1. Concept and types of relief from punishment 2. Conditional early relief from punishment (Grant of parole) 3. Replacing of remanent with a lighter punishment 4. Relief from punishment due to illness 5. Postponement of punishment for pregnant women and women having young children, and men bringing up young children alone 6. Relief from punishment due to expiration of guilty verdict period of limitations 7. Relief from punishment due to amnesty or clemency

1. Concept and types of relief from punishment Relief from punishment – it is complete or partial relief of the offender from the obligation to incur criminal punishment assigned him by the court. Relief of a person from the punishment should be distinguished from the relief of a person from criminal responsibility. First, relief from criminal responsibility is possible only for minor or moderate gravity crimes. Relief from punishment is allowed for the crime of any gravity. Second, not only the court but also the agency of inquiry, preliminary investigation, and prosecutor may relief from the criminal responsibility. Only the court may relief from the criminal sentence, as relief from punishment shall be made after imposition of court conviction. The exception is relief from punishment due to acts of amnesty or clemency. Third, from criminal responsibility can be relieved convicted offender as well as suspected person, the defendant and accused person. From the punishment can be relieved only convicted offender. Relief from punishment shall quash any legal consequences of commissioned crime, because based on criminal law the person relieved from the criminal punishment is the person without any criminal record. 101

Criminal law provides six grounds for relief from the punishment of the guilty person: conditional early relief; replacement of remanent with a lighter punishment, due to illness, postponement of punishment for pregnant women and women having young children, and men bringing up young children alone,postponement of punishment due to extraordinary circumstances, in connection with expiration of guilty verdict period of limitations, as a result of an amnesty or clemency. 2. Conditional early relief from punishment (Grant of parole) Correction of the person assigned with a sentence can occur before completion of his or her punishment, thus the further execution of the sentence becomes pointless and impractical. In connection with this criminal law provides institution for conditional early relief from punishment expressed in the relief of a person from further punishment under the following conditions. First, parole is allowed in relation of persons completing not any sentences, but only such as correctional works, restriction on military service, restraint or imprisonment. Herewith the person may also be completely or partially relieved from completion of any additional punishment. A person serving a life sentence may be relieved on parole, if the court finds that he does not need any further punishment and in fact has served not less than twenty-five years in prison. Second, the early relief from prison is not unconditional, since during the remanent convict must comply with the requirements imposed on him by the court. These requirements are similar to those that apply to conditional convict. Third, the necessary condition of parole is a certain part of the sentence to be served by the convict, so parole can only be applied after convict actually served: – at least one-third of a sentence for the crime of small or moderate gravity; − at least half of the sentence for the grave crime; − at least two thirds of the sentence for felony; − not less than three-quarters of a sentence for offenses specified in paragraphs c), d) of Chapter three, Chapter four of Article 120, para102

graphs c) and d) of Chapter four of Article 121 of the Criminal Code of the Republic of Kazakhstan; − not less than three-quarters of a sentence for a crime committed by an organized group or criminal community (criminal organization), transnational groups, transnational criminal community (transnational criminal organizations) or stable armed group (band). In this case, the actual served period by convict shall not be less than six months. This exception does not apply for other types of punishment. Supervision for a person behavior relieved on parole shall be conducted by the specialized state authorities,and in regards of military personnel by the command of military units and institutions. Criminal law provides three grounds for repeal of parole: а) if the convicted person committed a repeated administrative offense for which he was imposed with an administrative penalty, or willfully evaded the performance of the duties assigned to him by Article 178-2 of the Criminal Executive Code of the Republic of Kazakhstan and the court may take decision to quash and execute remanent of the punishment upon supervision authoritiesapplication referred in the sixth clause of present article; b) if convicted person committed a crime of negligence, the court should take decision on quash or preservation of parole imposing sentence for a new crime; c) if convicted person committed a deliberate crime, the court should sentence him according to the rules stipulated in Article 60 of Criminal Code. 3. Replacing of remanent with a lighter punishment Replacing of remanent with a lighter punishment shall be allowed under all of following conditions are met: a) A person serving a sentence of imprisonment. This ground for relief from punishment shall not be applied for other forms of punishment; b) A person serving a sentence for committing a crime of minor, moderate gravity or grave crimes; 103

c) The Court shall consider the behavior of the convicted person while serving his sentence; the convicted person has actually served at least one-third of his sentence for committing a crime of minor or moderate gravity, half of the sentence for grave crimes. The person may also be completely or partially relieved from completion of additional punishment. While replacing the remanent the court may assign any lighter punishment in accordance with the types of punishments specified in the relevant article of the Criminal Code, within the frames stipulated for each type of punishment. Unlike the parole replacement of remanent with a lighter punishment is unconditional and will not be canceled due to releasee misbehavior. 4. Relief from punishment due to illness Relief from punishment due to illness is binding in case if the person after the commission of the crime becomes insane, enable to realize the actual nature and social danger of his actions (inaction) or to control them. Court may assign only compulsory measure of a medical character for such persons. It is obvious that the person became actually insane, but legally it can not be recognized as such and relieved from criminal responsibility, since the state of insanity shall be established at the time of the crime, and in this case the mental disorder of a person comes after the commission of socially dangerous acts. If a person is getting other serious illness after commission of crime preventing him to serve the sentence, the court may relieve him from further punishment. In this case, relief from punishment is optional and can be assigned at court discretion. Relief from punishment due to illness is conditional, and therefore in case of recovery these persons shall bear criminal responsibility and punishment, unless the period of limitations had expired. The Criminal Code considers the specific of military service and therefore establishes that the soldiers sentenced to detention in the brig, shall be relieved from punishment or continue serving in the case of 104

illness, making them unfit for military service. Remanent can also be replaced for them with a lighter punishment. 5. Postponement of punishment for pregnant women and women having young children, and men bringing up young children alone Criminal law has always been a particularly humane for women, taking care of normal children development, so criminal code establishes that court may postpone execution of the sentence of up to five years, but no longer than until the child reaches the age of fourteen for the convicted women having young children, and men bringing up young children alone. Postponement of punishment is not applied for pregnant women, women having young children, and men bringing up young children alone, sentenced to imprisonment for a term exceeding five years for grave crimes or felony against the person. However, if convicted woman abandoned the child or continues to avoid fosterage later, after caution performed by the authority monitoring her behavior, the court may, upon supervision authority application, cancel the postponement of punishment and send the convict to serve her sentence in the place assigned in accordance with court verdict. After expiration of postponement limits or in case of child death, or in case of abortion, court, depending on convicted person behavior, may relief her from punishment, or replace punishment imposed with lighter punishment, or take decision to send convicted person to the relevant place to serve her sentence. If during postponement period convicted person commissions new crime the court shall assign punishment for cumulative sentences. 6. Relief from punishment due to expiration of guilty verdict period of limitations Relief from punishment due to expiration of guilty verdict period of limitations is binding if court verdict was not executed within the following period from the date of its entry into force: − three years for a minor offense conviction; − six years for misdemeanor conviction; 105

− ten years for grave crime conviction; − fifteen years for felony conviction. The limitation period shall be suspended if convict refuses to serve his sentence. In this case, the limitation period shall be resumed after arrest of the convicted person or his acknowledgement of guilt, herewith the limitation periods elapsed shall be accumulated for the time of condemnation avoidance. The limitation period is interrupted if, before its expiration person commits a new intentional crime. In such cases, the limitation period starts again from the date of new offense commission. The case to apply period of limitations for a person convicted to death or life imprisonment shall be decided by the court. If the court does not find it possible to apply the period of limitations, the death penalty is commuted to life imprisonment and life imprisonment is replaced by imprisonment for a term of twenty-five years. Period of limitations shall not be applied for the persons convicted for crimes against the peace and security of mankind, terrorist crimes and felonies against the person and constitutional order and security of the state in economic activity, against the public safety and public order. 7. Relief from punishment due to amnesty or clemency Amnesty is declared by the Parliament of Kazakhstan in respect of the individual not certain set of people. In accordance with amnesty act persons convicted for crimes can be: relieved from the basic punishment, relieved from additional punishment; their sentence may be reduced, their sentence may be replaced with a lighter punishment, and persons who have served their sentence can be overturned by amnesty act. Based on general rule, the act of amnesty applies only to the crimes committed prior to its publication. However, in exceptional cases, it can be valid in respect of offenses committed within a certain time after its adoption, but subject to the amnesty person performs the actions specified in amnesty act. Amnesty does not change the criminal law, does not preclude the components of crimes, but only relief from criminal responsibility, as one of the ways to implement the principles of humanism and justice of criminal law. 106

Other than amnesty, clemency is performed by the President of the Republic of Kazakhstan in respect of designated individuals only. In accordance with clemency act a person convicted for crimes can be: relieved from further punishment, his sentence may be reduced, his sentence may be replaced with a lighter punishment, and persons who have served their sentence can be overturned by clemency act. The death penalty by way of clemency may be replaced with life imprisonment or imprisonment for the period of twenty-five years.

Chapter 19 Conviction

1. Concept of conviction 2. Value (effects) of conviction

Concept of conviction Conviction is special legal status of the person committed the crime, as a consequence of criminal punishment assignment. Therefore, a person relieved from punishment shall be deemed as cleared of criminal record. Conviction arises from the date of guilty verdict effect and lasts until its cancellation or clearance. Criminal Law provides two grounds of criminal records abatements: cancellation and clearance. Cancellation of conviction means an automatic termination of its validity after a certain period established by the criminal law. Cancellation of conviction does not require any special decision of the court or other authority. Cancellation period begins from the date of punishment served by the convict. In this case, if person commits a new crime within cancellation period it shall not be discontinued. Criminal law establishes the following maturity convictions: − in respect of conditional sentence convicts – after the trial period expiration; − in respect of military men served their sentence in the form of restrictions on military service, or keeping on brig – upon the actual completion of the sentence; − in respect of persons sentenced to more mild forms of punishment than imprisonment – for one year after completion of sentence; − in respect of persons sentenced to imprisonment for a crime of minor or moderate gravity – at the end of three years after completion of sentence; − in respect of persons sentenced to imprisonment for grave crimes – after six years of sentence completion; 108

− to persons sentenced to imprisonment for felonies – after eight years of sentence completion. In accordance with the law if convict was early relieved from the sentence or remanent was replaced with a lighter punishment, the maturity shall be calculated based one actually served sentence from the moment of relief from the basic and additional types of punishment. If in addition to the basic punishment additional punishment was assigned by the court verdict, cancelation period is calculated from the date of basic and additional punishment completion. When person is convicted for cumulative offenses or cumulative sentences for crimes related to various degree of gravity, criminal records shall be completed per each crime individually, and maturities are calculated from the date of completion of cumulative offenses or cumulative sentences. The second form of the criminal records discontinuance – is clearance of conviction. It means a conviction clearance based on special court resolution before completion expiry. The ground for clearance of criminal records is convict impeccable behavior after serving his punishment. Cancelation or clearance of conviction void all legal consequences associated to criminal record. 2. Value (effects) of conviction The conviction entails important consequences for the perpetrator: − being circumstance aggravating punishment; − being qualified factor for a number of crimes (such as vandalism); − impacts the expiration of guilty verdict limitations period; − implies a special procedure of sentencing for repetition of crimes, − being an obstacle to relief a person from criminal responsibility for a number of reasons; − involves certain consequences other tan ofcriminal law (for example, persons with criminal records can not occupy some posts, administrative supervision is set for them, etc.)

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Chapter 20 Peculiarities of criminal responsibility and punishment of minors

1. Peculiarities of the sentences and the order of their assignment to minors 2. Peculiarities of relief from criminal responsibility 3. Peculiarities of relief from punishment 4. Peculiarities of limitation period calculation and conviction clearance

1. Peculiarities of the sentences and the order of their assignment to minors Minors are the persons at age of fourteen years old, but under eighteen years at the time of the offense commission. Criminal legislation of the Republic of Kazakhstan considering insufficient age and social maturity of minors, establishes a number of special rules that limit and mitigate assignment of criminal responsibility and punishment to them. Significantly reduced the list of punishment types can be applied to minors. Only following six types of punishment can be applied to them: 1) financial penalty; 2) deprivation of the right to engage in certain activities; 3) communityservice; 4) correctional works; 5) personal restraint; 6) imprisonment. The content of each above indicated types of punishment also has certain specifics in respect to minors because punishment terms are significantly reduced and additional conditions of their assignment are established. Financial penalty shall be assigned only if juvenile offender has independent income or property which may be levied. In this case, the size of penalty is also limited: it can be administered at the rate of ten to five hundred monthly estimated indices. 110

Deprivation of the right to engage in certain activities shall be assigned to the minors for the period of one year to two years. Community service shall be assigned for the period from forty to one hundred and sixty hours, and it shall contain the activities within the powers of minors, and they shall executed by them during free from school or job time.The duration of this type of punishment for persons under sixteen years may not exceed two hours per day, and persons between the ages of sixteen and eighteen years old – three hours per day. Correctional works shall be assigned to minors who have reached age of sixteen years by the time of sentencing and lasts for the period of up to one year. Personal restraint shall be assigned to minors appointed for the period from to two years. Imprisonment shall be assigned to minors for the period not exceeding ten years, and for aggravated murder or for cumulative offenses, one of which is the murder with aggravating circumstances – twelve years. Imprisonment shall is not be assigned for minors committed minor offenses or medium gravity crime for the first time. Imprisonment shall be served by minors convicted: а) male minors convicted to imprisonment for the first time, as well as female minors – in juvenile correctional facilities of general regime; б) male minors, previously serving imprisonment – in juvenile correctional facilities of medium regime. Conditions of the life, and nurturing, level of mental development and other personal characteristics, as well as impact of older persons to him also shall be taken into account while sentencing minor, besides the general sentencing principles. 2. Peculiaritiesof relief from criminal responsibility Provision of emphasis is stating that minor committed a minor offense or medium gravity crime for the first time may be relieved from the criminal responsibility by the court, if it is determined that his correction is possible without criminal prosecution. In this case, he can be subjected to compulsory education measures. The types of such measures are: warning, transfer under supervision of parents or persons replacing them, or specialized state authori111

ties; obligation to make amends for harm caused; restriction of leisure and special requirements to the behavior of the minor; placement to education organization of particular treatment, assignment of obligation to offer an apology to the victim. Warning consists of explanation to minor of injury caused by his act, and the consequences of re-offending. Transfer under supervision includes entrustment of responsibilities for education of minor and control over his behavior for the parents or persons in loco parentis, or specialized state authority. The obligation to make amends for the harm is assigned considering minor property status and availability of appropriate labor skills. Restriction of leisure and special requirements to minor behavior may include prohibition to visit certain places, use certain forms of leisure activities, including those related to driving of a motor vehicle, limitation of being away from home after a certain time of day, travel to other areas without permission of the specialized state authority. Minor may be assigned with a requirement to return to the institution and continue or graduate his training or get employed using specialized state authority assistance. Placement to educational organization of particular treatment for the period from six months to two years may be imposed by the court to minor committed an intentional misdemeanor or felony.Residence in these organizations may be terminated early due to attainment of majority by the person, or based on application of specialized state authority providing redress; the court finds that minor does not need to apply such measures to his correction in the future. Extension of placement to educational organization of particular treatment after expiration of the period provided in Chapter five of present article shall be allowed only if minor requires to complete a general education or vocational training, but not longer than up to the age of majority. A minor may be assigned with multiple compulsory educational measures. In case if minor systematically fails to perform compulsory educational measures, this measures shall be canceled by the court upon specialized state authority application and the materials shall be sent to involve a minor to criminal responsibility. 112

3. Peculiaritiesof relief from punishment Minor convicted for crime of minor or moderate gravity may be relieved from the punishment by the court assigning compulsory education measures provided in the preceding clause. Terms of conditional early relief are reduced for minors. Conditional early relief from punishment can be applied to minors sentenced to corrective works or imprisonment after actual serving: а) at least one-fourth of the sentence imposed for the crime of minor or moderate gravity; b) at least one-third of the sentence imposed for grave crime; c) at least half of the sentence imposed for felony not involving infringement of a person›s life; d) at least two-thirds of the sentence imposed by the court for felony, connected to human life endeavor. 4. Peculiaritiesof limitation period calculation and conviction clearance The periods of limitation stipulated by the general provisions of the Criminal Code, shall be reduced by half in respect of minors relief from criminal responsibility or service of sentence. For persons committed the crimes before the age of eighteen years criminal records maturity stipulated by the Criminal Code shall be reduced and, therefore, equal to: a) four months after completion of lighter forms of punishment other than imprisonment; b) one year after completion of imprisonment period assigned for crime of minor or moderate gravity; c) three years after completion of imprisonment period assigned for grave crime or felony. Based on humanity principle legislator established that, in exceptional cases, considering the nature of offense and personality the court may apply the provisions of present chapter to the persons committed the crime under the age from eighteen to twenty-one years old, excluding placement them to educational organization of particular treatment.

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Chapter 21 Compulsory measure of medical character

1. Concept, purpose and grounds for compulsory medical measures application 2. Types of compulsory measures of medical character 3. Extension, amendment and termination of compulsory medical measures application

1. Concept, purpose and grounds for compulsory medical measures application Compulsory measures of medical character are the measures of compulsory treatment of the persons committed socially dangerous act established by criminal law. These measures are not deemed as criminal punishment, as they do not contain the elements of retribution, do not express any negative evaluation on behalf of the state, include other grounds for application and pursue other goals. Grounds for compulsory medical measures application are exhaustively listed in the Criminal Code. Compulsory medical measures may be assigned by the court to the persons: − committed the acts stipulated by the Special Chapter of the Criminal Code, in a state of insanity; − who got mental diseases after the crime committed and that made it impossible to assign or execute the sentence; − committed the crime and suffering from mental diseases not excluding sanity; − committed the crime and been recognized as required of alcoholism or drug treatment. Compulsory measures of medical character are imposed to these persons only in cases when mental diseases are associated with the possibility of causing such persons other significant harm or the risk to 114

themselves or others. If these persons do not pose a hazard based on to their mental state, the court may transfer all required materials to the health authorities to settle issue of their treatment. The objectives of compulsory medical measures application are following: treatment of above listed persons or improvement of their mental state; preventing them from committing new offenses stipulated in the articles of the Special Chapter of the Criminal Code. 2. Types of compulsory measures of medical character Types of compulsory medical measures may be assigned by the court are following: a) Ambulant compulsory supervision and psychological treatment. That measure shall be applied if the person in his mental state does not require placement to psychiatric hospital; b) Compulsory treatment psychiatric hospital of comprehensive type. This type of measure shall be applied if the person does not require intensive observation; c) Compulsory treatment in psychiatric hospital of specialized type. It shall be applied if the person requires constant observation; g) Compulsory treatment in psychiatric hospital of specialized type with intensive supervision. It shall be applied if the person in his mental state poses a hazard to him or others and requires constant and intensive observation. 3. Extension, amendment and termination of compulsory medical measures application Court assigning compulsory medical treatment does not establish its duration, thus Criminal Code expressly regulates extension, amendment and termination of compulsory medical measures application. All matters related to extension, amendment and termination of compulsory medical measures application can be settled only by the court upon the application of hospital management executing compulsory treatment, based on psychiatrists’ commission report. Person assigned to compulsory medical measures shall be subject to examination by commission of psychiatrists at least once every six 115

months to decide on availability of grounds to send application to the court and terminate these measures or replace them with others.It there are no any grounds for termination or replacement of compulsory medical measures application hospital management conducting compulsory treatment shall advise the court to extend compulsory treatment.In this case, the first extension of compulsory treatment can be carried out within six months after treatment is started, and subsequently it can be carried annually. Replacement or termination of compulsory medical measures application shall be established by the court in the event that such change in mental state of a person does not require any more previously assigned measures or there is need to assign other compulsory medical measures.In case of compulsory medical treatment termination in psychiatric hospital court may transfer the necessary materials related to person treated compulsory to health authorities to decide on his treatment or referral to mental welfare office. In case of person recovery whose mental disease occurred after the crime, while sentencing or resume of execution time when he was getting compulsory treatment in a psychiatric hospital, this period shall be included into the terms of punishment at the rate of one day of stay in psychiatric hospital per one day imprisonment.

Contents Foreword ....................................................................................................................... 3 Chapter 1. Concept, tasks, principles of Criminal Law............................................ 5 Chapter 2. Criminal Law is the only source of Criminal Right................... 13 Chapter 3. Concept of crime........................................................................... 20 Chapter 4. Criminal responsibility and corpus delicti as its base................ 23 Chapter 5. Object of the crime and the subject of crime............................. 28 Chapter 6. Objective aspect of crime............................................................. 31 Chapter 7. Subject of crime......................................................................................... 36 Chapter 8. Mental element in crime............................................................... 40 Chapter 9. Stages of crime...................................................................................................... 48 Chapter 10. Partnership in a crime............................................................................. 53 Chapter 11. Plurality of crimes................................................................................... 58 Chapter 12. The circumstances excluding crime of act.............................................. 61 Chapter 13. Concept of punishment and its purpose................................................. 67 Chapter 14. Types of punishments............................................................................. 69 Chapter 15. Procedure of sentencing ............................................................... 77 Chapter 16 . Conditional sentence............................................................................... 94 Chapter 17. Relief from criminal responsibility......................................................... 97 Chapter 18. Relief from punishment......................................................................101 Chapter 19. Conviction................................................................................................ 108 Chapter 20. Peculiarities of criminal responsibility and punishment of minors...... 110 Chapter 21.Compulsory measure of medical character............................................. 114

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Учебное издание Dzansarayeva Rima Yerenatovna Malikova Sholpan Baltabekovna Corse of lectures on the general part of criminal law Educational manual Выпускающий редактор Г.C. Бекбердиева Компьютерная верстка Г. Шаккозовой Дизайн обложки Р. Скаков ИБ №6836 Подписано в печать 10.11.13. Формат 60х84 1/16. Бумага офсетная. Печать цифровая. Объем 4,625 п.л. Тираж 50 экз. Заказ №1594. Издательство «Қазақ университетi» Казахского национального университета им. аль-Фараби. 050040, г. Алматы, пр. аль-Фараби, 71. КазНУ. Отпечатано в типографии издательства «Қазақ университетi».