Beating
1. General Overview of Article 109-1 of the Criminal Code of the Republic of Kazakhstan
Article 109-1 of the Criminal Code of the Republic of Kazakhstan establishes criminal liability for battery or other violent acts that cause physical pain but do not result in minor bodily harm.
Article 109-1 of the Criminal Code of the Republic of Kazakhstan, “Battery” — zakonpravo.kz
This provision is of fundamental importance in distinguishing between the following:
- battery;
- intentional infliction of minor bodily harm;
- torture;
- other violent criminal offences;
- administrative offences committed in the absence of the elements of a criminal offence.
The Article consists of two parts:
Part 1 — the basic offence;
Part 2 — the aggravated offence involving one of eight qualifying circumstances.
The procedural rules applicable to the two parts differ.
Pursuant to Article 32 of the Criminal Procedure Code of the Republic of Kazakhstan (hereinafter, the “CPC”), cases under Part 1 of Article 109-1 are private prosecution cases, whereas Part 2 of Article 109-1 is not included in the list of private-public prosecution cases and therefore falls under public prosecution.
This is one of the most important practical circumstances to consider when preparing a complaint, a report to the police, or a defence position.
Article 32 of the CPC of the Republic of Kazakhstan — Types of Criminal Prosecution
2. Legislative History of the Introduction of Article 109-1
The current version of Article 109-1 is associated with legislative amendments introduced in 2024, including amendments aimed at strengthening the protection of women and children and criminalising battery.
The new version of the criminal legislation applies subject to the transitional provisions.
The Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan on the qualification of certain criminal offences against human life and health specifically clarifies that the amendments to Articles 108-1, 109-1 and 110 of the Criminal Code introduced by Law No. 72-VIII of the Republic of Kazakhstan dated 15 April 2024 apply to acts committed after 16 June 2024.
This is of practical significance in relation to acts committed before 16 June 2024: a subsequent criminal law that worsens a person's legal position cannot automatically be applied.
3. Generic and Direct Legal Interests Protected by the Offence
The principal legal interest protected by Article 109-1 is the social relations that ensure the protection of:
- the inviolability of a person's bodily integrity;
- health;
- physical safety;
- a person's right not to be subjected to violence.
Under Part 1, the immediate harm is primarily manifested in physical pain, rather than in medically established minor bodily harm.
Therefore, distinguishing between the following is of fundamental importance for the purposes of Article 109-1:
physical pain
and
bodily harm.
These are not identical concepts.
For example:
- a person is struck in the face by hand and experiences pain, but no minor bodily harm is medically established — Article 109-1 may apply;
- after a person is struck, abrasions, bruises or other injuries classified as minor bodily harm under forensic medical criteria appear — the issue must be resolved with due regard to Article 108-1 of the Criminal Code;
- a person is beaten systematically and subjected to physical or psychological suffering — the elements of Article 110 of the Criminal Code, entitled “Torture”, must be examined.
4. Objective Elements of the Offence
The objective elements of Article 109-1 consist of alternative acts:
- battery;
- the commission of other violent acts.
The required consequence is:
the infliction of physical pain.
At the same time, the law establishes a negative criterion:
no minor bodily harm must be caused.
Accordingly, a forensic medical assessment may be of considerable importance in distinguishing between Articles 109-1 and 108-1.
5. What Constitutes Battery
The term “battery” encompasses the infliction of multiple blows or physical force intended to cause pain.
However, for criminal-law purposes, the number of blows is not decisive in itself. The circumstances must be assessed as a whole, including:
- the nature of the physical force used;
- its intensity;
- the method employed;
- the part of the body targeted;
- the circumstances of the conflict;
- whether physical pain occurred;
- the consequences;
- the perpetrator's intent;
- whether bodily harm was caused.
For example, even a single forceful push may potentially fall under Article 109-1 if it objectively causes physical pain and does not result in minor bodily harm.
This is supported by current judicial practice.
In one published case concerning Part 1 of Article 109-1, a court in Astana found that, during an argument, the accused pushed a victim who was standing on a stair landing and holding onto a handrail. The court relied on the fact that physical pain had been caused without bodily harm. The evidence included the victim's testimony, witness statements and video recordings.
Published Account of Judicial Practice in Astana under Part 1 of Article 109-1
Thus, the offence does not necessarily require the infliction of multiple blows.
6. Other Violent Acts
The phrase “other violent acts” substantially broadens the objective elements of the offence.
Such acts may include, for example:
- pushing;
- grabbing;
- twisting a person's arm;
- forcefully jerking or pulling a person;
- squeezing or gripping a person tightly;
- causing pain through physical force;
- delivering a single blow;
- other forms of physical force.
However, each specific act must be proven.
A general statement that “a conflict occurred between the parties” is insufficient.
It is necessary to establish which person committed the specific act and what consequences it caused.
7. Physical Pain as a Mandatory Element of the Offence
Physical pain is a mandatory consequence.
Accordingly, the following causal link must be established in the case:
act → physical force → physical pain.
If the only fact established is that the accused was present at the location of the conflict, but the specific violent act has not been proven, this is insufficient to establish the elements of the offence.
Likewise, if the victim states:
“I was in pain,”
that statement constitutes evidence subject to verification. However, it does not relieve the court of its obligation to assess the entirety of the evidence.
Pursuant to Article 125 of the CPC, evidence is assessed in terms of relevance, admissibility and reliability, while the body of evidence is assessed in terms of sufficiency.
Article 125 of the CPC of the Republic of Kazakhstan, “Assessment of Evidence”
8. Distinguishing Article 109-1 from Article 108-1 of the Criminal Code
The key question is:
Was minor bodily harm caused, or was there only physical pain?
Article 109-1 applies where no minor bodily harm has been caused.
If a forensic medical examination establishes that minor bodily harm was inflicted, the possibility of classifying the act under Article 108-1 must be considered.
Accordingly, defence counsel should analyse:
- the expert's report;
- the diagnosis;
- the degree of bodily harm;
- the causal link;
- the mechanism by which the injuries occurred;
- whether the injuries are consistent with the alleged mechanism.
If the charge under Article 109-1 is based on injuries, but the medical records contradict the conclusion that no bodily harm occurred, the correctness of the legal classification becomes an issue.
9. Distinguishing Battery from Torture under Article 110 of the Criminal Code
It is particularly important to distinguish Article 109-1 from Article 110 of the Criminal Code.
The Regulatory Resolution of the Supreme Court explains that torture may be committed through prolonged and/or repeated acts, including battery, the infliction of minor bodily harm, biting, pulling out hair, pricking, deprivation of food, water or heat, and other violent acts.
In this regard, acts of battery and the infliction of minor bodily harm may be encompassed by the offence of torture and, in such circumstances, do not require additional classification under Articles 108-1 or 109-1.
Supreme Court Clarifications on the Qualification of Torture and Battery
Therefore, where the accusation is based on numerous episodes of violence committed over an extended period, each episode must not automatically be classified as a separate act of battery.
It is necessary to establish whether there was a single intent, as well as the systematic nature, duration and purpose of the acts.
10. Subjective Elements of the Offence
Article 109-1 concerns an intentional criminal offence.
The perpetrator's guilt must be established.
Guilt is a mandatory element of criminal liability.
It is therefore necessary to establish not only the fact of physical contact but also the person's subjective attitude towards their actions.
Questions of practical significance include:
- whether the accused intended to use physical force;
- whether the accused understood the nature of their actions;
- whether the accused foresaw that their actions would cause physical pain;
- whether the physical contact was accidental;
- whether the actions constituted necessary defence;
- whether a state of extreme necessity existed;
- whether there was another legally relevant reason for the use of physical force.
11. Necessary Defence
In every case involving battery, Article 32 of the Criminal Code of the Republic of Kazakhstan, which governs necessary defence, and the related provisions must be examined.
A typical situation:
A strikes B first.
B pushes A away, causing A to experience physical pain.
In such circumstances, establishing the fact that B used physical force does not automatically mean that the elements of an offence under Article 109-1 are present.
It is necessary to establish:
- who used violence first;
- whether there was an actual socially dangerous unlawful attack;
- whether the attack was ongoing;
- whether the response was defensive in nature;
- whether the defence was proportionate to the nature of the attack.
If the prosecution fails to examine these circumstances, the defence is entitled to raise the issue of an incomplete pre-trial investigation and insufficient evidence before the court.
12. Part 1 of Article 109-1 — Procedural Rules
This is a matter of fundamental importance.
Pursuant to Article 32 of the CPC:
cases under Part 1 of Article 109-1
are private prosecution cases.
Article 32 of the CPC of the Republic of Kazakhstan on zakonpravo.kz
As a general rule, this means that proceedings are initiated only upon the victim's complaint.
13. Part 2 of Article 109-1 — Public Prosecution
Part 2 of Article 109-1 is not listed in Part 3 of Article 32 of the CPC.
Pursuant to Part 6 of Article 32:
cases are public prosecution cases, except for private prosecution and private-public prosecution cases.
Accordingly:
Part 1 of Article 109-1 — private prosecution;
Part 2 of Article 109-1 — public prosecution.
This constitutes a significant procedural distinction.
For offences under Part 2, criminal prosecution does not have to be initiated solely through a private complaint filed by the victim with the court.
Criminal prosecution is carried out by the State.
14. Exception: A Person Who Is Helpless or Dependent
Even in private prosecution cases, the prosecutor may initiate or continue proceedings in the absence of a victim's complaint if the act concerns the interests of a person who:
- is in a helpless condition;
- is in a dependent position; or
- is otherwise unable to exercise their rights independently.
This is expressly provided for in Part 4 of Article 32 of the CPC.
This provision is of particular importance in cases involving:
- children;
- persons with disabilities;
- persons under guardianship;
- victims of domestic violence;
- persons who are materially or otherwise dependent on the alleged perpetrator.
15. Court Jurisdiction
Article 109-1 generally falls within the jurisdiction of a court of first instance at the district level.
Pursuant to Article 306 of the CPC, district and equivalent courts hear all criminal cases except those assigned to the jurisdiction of specialised courts.
As a general rule, the case is heard by one of the following courts:
- a district court;
- a city court;
- the relevant specialised inter-district court, depending on the court system of the region and the rules governing the allocation of criminal cases.
Exceptions may arise in the following circumstances:
- where the accused is a minor;
- where the accused is a military servicemember;
- where the act was committed in connection with military service;
- where cases falling under different jurisdictions are joined.
16. Military Court Jurisdiction
If the act was committed by a military servicemember and the case falls within the exclusive jurisdiction of a military court, Article 309 of the CPC applies.
Garrison military courts have jurisdiction, in particular, over criminal offences committed by military servicemembers while performing military service, as well as certain acts committed by civilian personnel in connection with the performance of their official duties or within the location of military units.
For example, in one published case, the Military Court of the Shymkent Garrison initially considered a case classified under Article 451 of the Criminal Code, after which the charge relating to battery was reclassified under Article 109-1.
Published Report on a Case under Article 109-1 Involving a Military Servicemember
17. Competence to Consider the Case
The term “subject-matter jurisdiction” is used only to a limited extent in criminal proceedings in its traditional civil-procedure sense.
In this context, the following terms are more appropriate:
- criminal jurisdiction;
- investigative jurisdiction;
- court jurisdiction;
- competence of the criminal prosecution authority.
A report concerning an offence under Part 2 of Article 109-1 may be submitted to:
- the police;
- a criminal prosecution authority;
- the prosecutor's office.
Where there are sufficient grounds, the information is registered in the Unified Register of Pre-Trial Investigations (URPI), and criminal prosecution is carried out.
18. Pre-Trial Procedure under Part 1
A special private prosecution procedure applies to offences under Part 1 of Article 109-1.
Pursuant to Article 408 of the CPC:
private prosecution is initiated by filing a complaint with the court seeking to bring a person to criminal liability.
If the complaint is initially submitted to an inquiry body, an investigator or a prosecutor, it must be forwarded to the court.
Article 408 of the CPC of the Republic of Kazakhstan, “Initiation of Private Prosecution”
19. Contents of a Private Prosecution Complaint
The complaint must specify:
- the name of the court;
- a description of the incident;
- the place where the incident occurred;
- the time when the incident occurred;
- information about the evidence;
- a request for the case to be accepted for proceedings;
- the details of the person sought to be held criminally liable;
- a reference to the applicable criminal law provision;
- a list of witnesses;
- other necessary information.
It is particularly important not to limit the complaint to the statement “He/she beat me.”
The following should be described:
- the date;
- the time;
- the location;
- the specific acts;
- the sequence of events;
- the number of blows, if known;
- the nature of the physical force used;
- the physical pain caused;
- the absence or nature of injuries;
- witnesses;
- video recordings;
- correspondence;
- medical records.
20. Complaint Filing Deadlines and the Limitation Period
It is necessary to distinguish between the following:
1. the deadline for filing a private complaint;
2. the limitation period for bringing a person to criminal liability;
3. the limitation period for bringing a civil claim.
These are three distinct legal institutions.
21. Limitation Period under Article 109-1
Article 109-1 provides for the following penalties:
- a fine;
- correctional labour;
- community service;
- arrest.
Taking the system of penalties into account, this Article falls within the category of criminal misdemeanours.
Pursuant to Article 71 of the Criminal Code, the limitation period for a criminal misdemeanour is one year.
Accordingly, as a general rule:
one year must elapse from the date on which the criminal misdemeanour was committed for the limitation period to expire, with the corresponding legal consequences.
The period is calculated until the judgment becomes legally effective.
22. Can the Limitation Period Be Restored?
Caution is required when addressing this issue.
The limitation period for criminal prosecution and the deadline for filing a private prosecution complaint are two different legal institutions.
Therefore, provisions allowing procedural deadlines to be restored cannot automatically be applied to the limitation period for criminal liability.
Where the victim applies after a considerable period of time has elapsed, it is necessary to establish:
- when the act was committed;
- when the identity of the person concerned became known;
- when the victim obtained the medical records;
- whether circumstances prevented the victim from applying;
- whether the case was registered;
- whether the proceedings were terminated;
- when the decision to terminate the proceedings was issued;
- whether the limitation period has expired.
23. Judicial Practice on the Restoration of Procedural Deadlines
Where the issue concerns a procedural deadline for filing a complaint or appealing a judicial act, the court assesses whether the reasons for missing the deadline may be recognised as valid.
Circumstances that may be considered valid reasons include:
- serious illness;
- a helpless condition;
- minority;
- the actual impossibility of applying to the court;
- circumstances of an insurmountable nature;
- failure to provide proper notification;
- the objective impossibility of obtaining the necessary documents.
However, such circumstances must be proven.
The provisions of Article 71 of the Criminal Code concerning the criminal-law limitation period must be examined separately.
24. Civil Claim
The victim is entitled to seek compensation for:
- non-pecuniary damage;
- pecuniary damage;
- medical treatment expenses;
- expenses directly related to the criminal offence;
- other losses subject to compensation.
Article 167 of the CPC permits a civil claim to be filed from the commencement of the pre-trial investigation until the end of the trial examination of the case.
Article 167 of the CPC of the Republic of Kazakhstan, “Filing a Civil Claim”
25. State Duty
A civil claimant is exempt from paying state duty when bringing a civil claim in criminal proceedings.
This is expressly provided for in Part 3 of Article 167 of the CPC.
The Supreme Court has also clarified that a victim who brings a civil claim in criminal proceedings is exempt from paying state duty.
If the claim is upheld, the court determines the issue of recovering the state duty from the defendant in accordance with the law.
26. Penalty Amounts for 2026
As of 1 January 2026, the monthly calculation index (MCI) amounts to KZT 4,325.
Monthly Calculation Index for 2026 — Official gov.kz Website
Under Part 1:
Up to 80 MCI = up to KZT 346,000.
Under Part 2:
100–200 MCI = KZT 432,500–865,000.
However, the court is not required to impose the maximum fine.
The law also provides for alternative types of penalties.
27. Penalties under Part 1
Part 1 provides for:
- a fine of up to 80 MCI;
- correctional labour in the same amount;
- community service for up to 80 hours;
- arrest for up to 25 days.
The court selects the type of penalty taking into account the general principles governing sentencing.
28. Penalties under Part 2
Part 2 provides for:
- a fine of 100 to 200 MCI;
- correctional labour in the same amount;
- community service for 100 to 200 hours;
- arrest for 30 to 50 days.
It should be specifically noted that Part 2 does not provide for imprisonment.
29. Qualifying Circumstance — Two or More Victims
Subparagraph 1 of Part 2 concerns an act committed against two or more persons.
It is necessary to establish that violence was committed against at least two victims.
If one act involves the use of physical force against two people simultaneously, the following must be analysed:
- whether the intent extended to both victims;
- whether the acts were independent of one another;
- whether physical pain was caused to each victim.
In September 2026, the Karaganda Regional Court upheld a judgment in a case involving battery against two women. The court of first instance classified the act under Subparagraph 1 of Part 2 of Article 109-1 and imposed a fine of 100 MCI; compensation for non-pecuniary damage was also awarded to the victims. The appellate panel upheld the judgment.
Published Report on the Case Considered by the Karaganda Regional Court
This example is important because it illustrates the practical application of Subparagraph 1 of Part 2 and the simultaneous determination of a civil claim.
30. Violence Related to Official, Professional or Public Duties
Subparagraph 2 of Part 2 establishes liability for violence committed:
- against a person; or
- against that person's close relatives;
where the violence is connected with the victim's performance of:
- official duties;
- professional duties;
- public duties.
Thus, proving the fact of battery alone is insufficient.
It is necessary to establish a causal connection:
the violence was committed against the victim specifically because the victim was performing the relevant duties.
For example:
- a bus driver is assaulted by a passenger because the driver is performing their duties;
- a doctor is assaulted by a patient because the doctor provided medical care;
- a journalist is subjected to physical violence because of their professional activities;
- a civil servant is assaulted in connection with the performance of official duties.
31. Helpless State or Dependency
Paragraph 3 of Part 2 requires the determination of whether the victim:
- was in a helpless state;
- was financially dependent on the perpetrator; or
- was otherwise dependent on the perpetrator.
In this regard, the relevant circumstance must have been known to the perpetrator.
This is a subjective element of the qualifying feature of the criminal offence.
Accordingly, the prosecution must prove not only that the dependency existed, but also that the perpetrator was aware of it.
32. Group of Persons
Paragraph 4 of Part 2 covers:
- an act committed by a group of persons;
- an act committed by a group of persons acting in prior collusion.
The role of each participant must be established.
The mere fact that several people were present at the scene of a conflict is insufficient.
To classify an act under this qualifying feature, joint participation in the violent conduct must be proven.
33. Hooligan Motive
Paragraph 5 of Part 2 provides for an act committed out of a hooligan motive.
This does not mean merely an argument or aggressive behaviour.
The specific motive must be established.
At the same time, an ordinary domestic dispute, disagreement, jealousy, personal animosity, or similar circumstances should not automatically be classified as a hooligan motive.
For the defence, this is one of the most important issues in determining the correct legal classification of the act.
34. Motive of Social, National, Racial or Religious Hatred
Paragraph 6 of Part 2 requires the existence of a specific motive to be established.
In other words, the violence must have been committed because of the relevant hatred or hostility.
The following circumstances, in themselves, are insufficient:
- the victim's national affiliation;
- the victim's religious affiliation;
- the victim's social status.
It is necessary to establish that the relevant hatred or hostility was the actual motive for the violence.
35. Repetition
Paragraph 7 of Part 2 provides for an act committed repeatedly.
The concept of repetition is defined by Article 12 of the Criminal Code.
Under Article 12, subject to the conditions established by law, the commission of two or more acts provided for by the same article or part of an article of the Special Part of the Criminal Code is recognised as the repeated commission of criminal offences.
However, repeated commission must be distinguished from:
- a continuing criminal offence;
- an aggregate of criminal offences;
- recidivism.
36. Continuing Criminal Offence
Where several acts of physical violence are covered by a single intent and constitute one continuing course of conduct, each act cannot automatically be treated as a separate criminal offence.
Article 12 of the Criminal Code expressly provides that a continuing criminal offence is not recognised as having been committed repeatedly.
Therefore, where a charge is brought under paragraph 7 of Part 2, the defence must examine:
- the number of episodes;
- the dates and times when they occurred;
- whether there was a single intent;
- whether the violence ceased between the episodes;
- whether a new intent arose;
- whether the incidents constituted separate, independent episodes.
37. Battery of a Minor
Paragraph 8 of Part 2 provides for liability where an act is committed against a person who is knowingly a minor.
The key word here is “knowingly.”
It must be proven that the perpetrator knew that the victim was a minor or was aware of the victim's age.
This is particularly important where the person's age could not be reliably determined from their appearance.
The Supreme Court emphasises the need to establish the minor's exact age.
38. Practice in Cases Involving Battery of Minors
Reports have been published stating that a teacher in Shymkent was found guilty of beating a minor student under paragraph 8 of Part 2 of Article 109-1.
The court imposed a sentence of 25 days of administrative detention.
Publication on the Shymkent Court Judgment under Paragraph 8 of Part 2 of Article 109-1
Reports have also been published concerning a similar case heard in Kostanay involving a mother accused of beating her minor son.
Publication on the Case in Kostanay under Paragraph 8 of Part 2 of Article 109-1
39. Special Rule under Article 68 of the Criminal Code — Reconciliation
Article 68 of the Criminal Code provides for exemption from criminal liability in connection with reconciliation.
For an ordinary criminal misdemeanour or a crime of minor or medium severity, the following conditions must be satisfied cumulatively:
- reconciliation between the parties;
- compensation for the harm caused;
- the involvement of the relevant victim or complainant.
40. However, an Exception Applies in Cases Involving Battery of a Minor
This is a matter of principle.
Part 4 of Article 68 of the Criminal Code provides for an exception in relation to criminal offences involving violence against minors.
Accordingly, where paragraph 8 of Part 2 of Article 109-1 is applied in connection with violence against a minor, the mere fact of reconciliation should not constitute grounds for terminating the criminal proceedings under Article 68 of the Criminal Code.
This is an important distinction from the ordinary offence under Article 109-1.
41. Repeated Commission of an Offence under Article 109-1 after Previous Reconciliation
Part 4 of Article 68 of the Criminal Code establishes another specific restriction.
Where a person was previously exempted from criminal liability for a criminal offence on the grounds of reconciliation between the parties and, within the applicable limitation period, commits another criminal offence under Article 108-1 or Article 109-1 of the Criminal Code, a specific statutory restriction on the application of Article 68 applies.
Thus, the defence must examine not only whether the victim currently agrees to reconcile, but also:
- previous criminal proceedings;
- the grounds on which those proceedings were terminated;
- the dates of termination;
- the date of the new act;
- the expiry of the applicable limitation period.
42. Supreme Court Regulatory Resolution on Reconciliation
The Supreme Court explains that the cumulative fulfilment of the conditions prescribed by law is required for the application of Article 68 of the Criminal Code.
In particular:
- reconciliation must be voluntary;
- the harm must actually be compensated;
- a dispute over the amount of compensation may indicate that reconciliation has not been achieved;
- reconciliation must reflect the victim's genuine expression of will.
43. Mediation
Reconciliation may be achieved through:
- direct reconciliation;
- the conclusion of an agreement;
- mediation.
Mediation is particularly important in cases under Part 1 of Article 109-1.
However, a mediation agreement does not automatically result in the termination of criminal proceedings in every case.
It is necessary to verify:
- whether Article 68 of the Criminal Code permits reconciliation in the circumstances;
- whether the exception under Part 4 of Article 68 applies;
- whether the harm has been compensated;
- whether the victim genuinely and voluntarily agreed to reconcile.
44. Persons Participating in Criminal Proceedings
The principal procedural participants are as follows.
Victim
A person who has suffered direct physical, moral or property-related harm.
Private Prosecutor
The victim who performs the prosecutorial function in private prosecution proceedings under Part 1 of Article 109-1.
Suspect
A person who has the procedural status of a suspect as established by the Criminal Procedure Code.
Accused
A person against whom charges have been brought in accordance with the procedure prescribed by law.
Defendant
A person whose case has been referred to the court.
Defence Counsel
An advocate or, in cases provided for by the Criminal Procedure Code, another authorised person.
Victim's Representative
A representative acting in the interests of the victim.
Legal Representative
A person whose role is particularly important in cases where the victim or accused is a minor.
Prosecutor
A participant of particular importance in public prosecution and in exercising the powers provided for by the Criminal Procedure Code to protect persons who are unable to defend their rights independently.
45. Specific Features of Cases Involving a Minor Victim
Where the victim is under 18 years of age, the procedural safeguards afforded to that person are significantly enhanced.
The following matters must be established:
- the victim's age;
- the identity of the legal representative;
- the possibility of involving a psychologist;
- the need to protect the minor from secondary psychological trauma;
- the conditions under which questioning is conducted;
- the procedure for the participation of an advocate;
- whether reconciliation is legally permissible.
It is particularly important that the Supreme Court's regulatory resolution concerning cases involving minors requires their date of birth to be established precisely.
46. Evidence in Proceedings under Article 109-1
In practice, the principal evidence may include:
- the victim's testimony;
- witness testimony;
- video recordings;
- CCTV footage;
- recordings stored on mobile phones;
- correspondence;
- audio recordings;
- photographs;
- medical records;
- forensic medical examination reports;
- inspection records;
- physical evidence;
- records of emergency medical service calls;
- information from medical institutions;
- police records;
- documents concerning previous incidents where the charge is brought under paragraph 7;
- documents confirming the victim's age where the charge is brought under paragraph 8.
47. Video Recordings as Evidence
In battery cases, video recordings often have particular evidentiary significance.
The following matters must be examined:
- the authenticity of the file;
- the source from which the recording was obtained;
- the date;
- the time;
- whether the recording is continuous;
- whether it has been edited;
- the identification of the persons shown;
- whether the camera angle is relevant;
- whether the recording is complete.
The defence should not limit its inquiry to the question, “Is there a video recording?”
It should also ask, “What exactly does the video recording prove?”
For example, a video recording may confirm that a person was present at the scene but may not establish:
- that physical pain was inflicted;
- the existence of intent;
- the motive;
- how the conflict began;
- whether the victim had attacked first.
48. Medical Documentation
The following documents may be important:
- the patient's medical record;
- a certificate issued by a trauma centre;
- a doctor's report;
- the medical history;
- photographs of bodily injuries;
- examination results;
- a forensic medical report.
However, medical documentation and a forensic expert's report perform different evidentiary functions.
A doctor may document an injury.
A forensic expert, in turn, addresses questions requiring specialised knowledge.
49. Forensic Medical Examination
The Law of the Republic of Kazakhstan “On Forensic Expert Activities” governs the work of forensic experts.
Law of the Republic of Kazakhstan “On Forensic Expert Activities”
An expert must conduct the examination in a manner that is:
- comprehensive;
- complete;
- objective;
- scientifically substantiated.
Article 9 of the Law on Forensic Expert Activities
50. When a Repeat Examination May Be Necessary
Where:
- the conclusions are insufficiently substantiated;
- contradictions exist;
- not all materials have been examined;
- the expert has exceeded the scope of their competence;
- the initial data are incomplete;
- there are contradictions between the medical records and the expert's conclusions,
the defence is entitled to raise the issue of ordering an additional or repeat examination.
The Supreme Court separately regulates issues relating to the appointment and evaluation of forensic examinations.
51. Subject Matter of Proof
The following circumstances must be established in the case:
- whether the incident occurred;
- the time of the incident;
- the place of the incident;
- the manner in which it occurred;
- the specific act committed;
- the identity of the person who committed the act;
- the form of guilt;
- whether physical pain was inflicted;
- whether harm to health occurred;
- the motive;
- the qualifying feature, where the charge is brought under Part 2;
- the causal link;
- circumstances excluding the criminality of the act;
- circumstances mitigating or aggravating liability;
- grounds for terminating the proceedings;
- the amount of harm caused.
52. Burden of Proof
In public prosecution cases, the burden of proving the accusation rests with the state.
Private prosecution proceedings have their own specific features.
The Supreme Court's regulatory resolution on private prosecution cases emphasises that a private prosecutor must take an active role in submitting evidence.
This is particularly important for cases under Part 1 of Article 109-1.
53. Article 410 of the Criminal Procedure Code and the Court's Assistance
In private prosecution proceedings, the private prosecutor must submit evidence.
If the evidence cannot be obtained independently, the private prosecutor may inform the court where the evidence is located and file a motion requesting that it be obtained.
The court must provide the assistance prescribed by law.
In practice, this is important in relation to:
- CCTV footage;
- recordings held by organisations;
- medical records;
- documents held by state authorities;
- information that a private individual cannot obtain independently.
54. Assessment of the Victim's Testimony
The victim's testimony may have evidentiary value, but the court must assess it together with the other evidence in the case.
The following matters should be examined:
- consistency of the testimony;
- the existence of contradictions;
- the initial report of the incident;
- subsequent explanations;
- witness testimony;
- objective evidence;
- video recordings;
- medical documentation.
It is particularly important to compare the initial report of the incident with the testimony given in court.
55. False or Exaggerated Accusations
Where the evidence does not objectively substantiate the accusation, the defence is entitled to raise the following issues:
- the absence of the alleged incident;
- the absence of the elements of a criminal offence;
- the failure to prove the person's involvement;
- contradictions between the evidence;
- incorrect legal classification of the act.
At the same time, the fact that the accused denies the accusation does not automatically justify the conclusion that the victim has given false testimony.
56. Principle of the Presumption of Innocence
Under the Criminal Procedure Code, a person is presumed innocent until their guilt has been established by a court judgment that has entered into legal force.
Any unresolved doubt must be interpreted in favour of the accused.
This principle is particularly important in proceedings under Article 109-1 where:
- no video recording exists;
- witness testimony is contradictory;
- the victim has changed their testimony;
- medical records do not substantiate the mechanism by which the injuries allegedly occurred;
- it is unclear who initiated the use of force;
- no causal link has been established.
57. Procedural Coercive Measures
Article 155 of the Criminal Procedure Code provides for the possibility of applying the following measures:
- an undertaking to appear;
- compulsory appearance;
- temporary removal from office;
- seizure of property;
- a prohibition on approaching a specified person.
The following measures may be applied to victims and witnesses:
- an undertaking to appear;
- compulsory appearance;
- monetary penalties.
58. Undertaking to Appear
Article 156 of the Criminal Procedure Code allows a written undertaking to appear to be obtained.
It may be applied to:
- a suspect;
- an accused;
- a victim;
- a witness.
59. Compulsory Appearance
Where a participant in the proceedings has been duly summoned but fails to appear without a valid reason, compulsory appearance may be ordered, provided that the requirements of the Criminal Procedure Code are satisfied.
This is particularly important in private prosecution cases where:
- the victim fails to appear;
- witnesses fail to appear;
- the accused evades participation in the proceedings.
60. Detention
Detention is a more stringent procedural coercive measure.
Article 128 of the Criminal Procedure Code establishes the grounds for detaining a suspect.
Article 128 of the Criminal Procedure Code of the Republic of Kazakhstan — Grounds for Detention
As a general rule, the maximum period of detention is 72 hours.
However, when assessing the circumstances of a case under Article 109-1, the nature of the applicable sanction and the specific legal grounds for detention must be taken into account.
The following concepts must not be confused:
Arrest as a criminal punishment
and
Detention as a procedural measure.
61. Detention in Custody
Article 109-1 does not provide for imprisonment.
Therefore, the standard grounds for detention in custody, designed for crimes punishable by long-term imprisonment, are absent in an ordinary case of battery.
At the same time, other procedural mechanisms may exist in a particular situation if the case is joined with a more serious criminal offense.
62. Prohibition on Approaching
In cases involving violence against:
- a spouse;
- a former spouse;
- a relative;
- a cohabitant;
- a child;
the prohibition on approaching is of particular importance.
It may have practical significance in preventing repeated violence.
63. Judicial Examination of a Private Prosecution Case
Article 411 of the Criminal Procedure Code provides for special rules governing the examination of a private prosecution case.
The trial must commence no later than 15 days from the date the complaint is received by the court, but not earlier than three days from the date the defendant receives a copy of the complaint and an explanation of their rights.
64. Counter-Complaint
In domestic conflict cases, the following situation is not uncommon:
A accuses B of battery,
while B accuses A.
The Criminal Procedure Code permits a counter-complaint to be examined jointly with the original complaint.
Joinder is possible before the commencement of the judicial investigation.
This allows the court to assess the conflict as a whole:
- who initiated the conflict;
- who used force;
- whether self-defense occurred;
- whether the elements of a criminal offense are present on the part of both parties.
65. Failure of the Private Prosecutor to Appear
The failure of a private prosecutor to appear without a valid reason may result in the termination of the case.
At the same time, the defendant may request that the case be examined on its merits in the absence of the prosecutor.
This is an important defense mechanism.
66. Withdrawal of the Prosecution
A private prosecutor has the right to withdraw the prosecution.
However, the legal consequences of such withdrawal depend on the procedural stage and the grounds for termination.
Furthermore, in private prosecution cases, the rights of the defendant must be taken into account, particularly if the defendant disagrees with the circumstances and insists on acquittal.
67. Court Decisions in a Private Prosecution Case
Article 412 of the Criminal Procedure Code provides for:
- a conviction;
- an acquittal;
- termination of the case;
- referral of the case to the prosecutor if signs of a criminal offense subject to public or private-public prosecution are identified.
The last option is particularly important.
For example, if, during proceedings under Part 1, it becomes apparent that the circumstances actually indicate the elements of the aggravated offense under Part 2, the matter may fall outside the scope of private prosecution.
68. Civil Claim for Moral Damages
Battery directly affects:
- physical integrity;
- dignity;
- psychological well-being;
- the sense of security.
Therefore, the victim has the right to seek compensation for moral damages.
At the same time, the amount of compensation must be substantiated.
The following should be presented:
- the nature of the pain;
- the duration of the suffering;
- the consequences;
- seeking medical assistance;
- psychological consequences;
- the public nature of the conflict;
- the presence of minor children;
- repeated violence;
- the circumstances of the incident.
69. Civil Claim and Termination of the Case Due to Reconciliation
It is necessary to distinguish between:
criminal reconciliation
and
civil settlement of damages.
If the parties have reconciled, it is necessary to determine how the harm was remedied.
The Supreme Court's Regulatory Resolution concerning Article 68 emphasizes that the remedying of harm must be genuine.
A mere statement that:
“I have no claims”
may be insufficient if, in light of the circumstances of the case, there has been no actual settlement of the harm.
70. Court Decision on a Civil Claim
Under Article 170 of the Criminal Procedure Code, the court may:
- grant the claim in full;
- grant the claim in part;
- dismiss the claim;
- recognize the right to have the claim satisfied and refer the question of the amount to civil proceedings;
- approve a settlement agreement;
- approve a mediation agreement;
- leave the claim without consideration.
71. Supreme Court Regulatory Resolution No. 1 on Civil Claims
The Supreme Court states that examining a civil claim together with a criminal case is a guarantee of timely protection of a person's rights.
The Supreme Court's Regulatory Resolution also permits a claim for compensation for moral damages to be brought directly in criminal proceedings.
Supreme Court Regulatory Resolution No. 1 of June 20, 2005
72. Supreme Court Case Law
The Supreme Court has not yet adopted a separate regulatory resolution exclusively devoted to Article 109-1, analogous to the special Regulatory Resolution on private prosecution.
However, this article is directly covered by Supreme Court Regulatory Resolution:
No. 1 of May 11, 2007
“On the Qualification of Certain Criminal Offenses Against Human Life and Health.”
In 2024, specific clarifications concerning Articles 108-1, 109-1, and 110 were introduced into this Resolution.
The main practical conclusion is that:
the court must distinguish between battery, the infliction of minor harm to health, and torture.
Supreme Court Regulatory Resolution on the Qualification of Crimes Against Life and Health
73. Case Law in Private Prosecution Cases
Supreme Court Regulatory Resolution No. 13 of December 25, 2006, remains of considerable practical importance for Part 1 of Article 109-1.
The court must:
- ensure judicial protection;
- comply with the rules governing the initiation of private prosecution;
- ensure the rights of the prosecutor;
- ensure the rights of the defendant;
- examine the evidence;
- verify the possibility of reconciliation;
- prevent abuse of procedural rights.
Supreme Court Regulatory Resolution No. 13 of December 25, 2006
74. First-Instance Court Case Law — Astana
In a published case from Astana, the court found a person guilty under Article 109-1.
The factual circumstances were as follows:
- a conflict between two individuals;
- physical force was used;
- the victim experienced physical pain;
- minor harm to health was not established;
- the evidence consisted of the victim's testimony, witness testimony, and video recordings.
This example demonstrates that the elements of Article 109-1 do not necessarily require multiple blows or pronounced bodily injuries.
Astana Courts' Material on a Case Under Article 109-1
75. Astana Prosecutor's Office Practice
In another published case, a man was found guilty under Article 109-1 and sentenced to 10 days of arrest.
The Prosecutor's Office reported that the judgment had entered into legal force.
Astana Prosecutor's Office — Battery Case Under Article 109-1
This example demonstrates that courts actually apply arrest as one of the alternative types of punishment.
76. First-Instance and Appellate Court Practice — Karaganda
A case from 2026 under Subparagraph 1 of Part 2 of Article 109-1 is particularly illustrative.
The court of first instance:
- found the person guilty;
- imposed a fine of 100 monthly calculation indices;
- awarded moral damages in favor of two victims;
- awarded the costs of the representative.
The appellate court:
- examined the arguments of the appeal;
- did not change the legal classification;
- did not change the punishment;
- upheld the judgment without modification.
Material on the Decision of the Karaganda Regional Court
77. Case Law Involving a Minor Victim
Case law demonstrates the application of Subparagraph 8 of Part 2 to teachers, parents, and other persons who used physical force against a minor.
In such cases, the key issue for the defense is:
was the person actually aware that the victim was a minor?
In addition, it is necessary to establish that no minor harm to health was caused, since the legal classification may change if such harm is present.
78. Reclassification Practice
In a case heard by the Shymkent Military Court, the charge was initially classified under Article 451 of the Criminal Code, but during the court proceedings, the charge was reclassified under Article 109-1 in view of the established circumstances of the battery.
Material on Reclassification Under Article 109-1 at the Shymkent Military Court
This example demonstrates that the legal classification may be adjusted by the court after examining the evidence.
79. Case Law on Repeated Offenses
In a published case considered in 2026, the charge included Subparagraph 7 of Part 2 of Article 109-1 — battery committed repeatedly — alongside Article 108-1.
The court imposed 200 hours of community service.
Publication on a Case Classified Under Subparagraph 7 of Part 2 of Article 109-1
This example is important for analyzing the distinction between:
- Article 109-1;
- Article 108-1;
- repeated commission;
- a concurrence of criminal offenses.
80. Qualification Issues in Judicial Practice
Professional literature and judicial materials from 2025–2026 identify problems in the application of Article 109-1.
The following issues are particularly controversial:
- determining physical pain;
- the absence of clear objective criteria for pain;
- distinguishing battery from minor harm to health;
- distinguishing battery from torture;
- determining repeated commission;
- classifying domestic conflicts;
- determining motive;
- proving hooligan motives;
- proving that the person knowingly knew the minor's age;
- the relationship between private and public prosecution.
A specialized publication addressing problems in the application of Article 109-1 separately notes the emergence of procedural and qualification issues following the introduction of the provision.
Analytical Material on Problems in the Application of Article 109-1
81. International Standards
When applying Article 109-1, it is necessary to take into account the international treaties ratified by the Republic of Kazakhstan.
The following are of particular importance:
International Covenant on Civil and Political Rights
Article 7 prohibits torture and cruel, inhuman, or degrading treatment.
Article 14 guarantees a fair trial.
International Covenant on Civil and Political Rights — zakonpravo.kz material
82. Convention on the Rights of the Child
The Convention on the Rights of the Child is particularly important in relation to Subparagraph 8 of Part 2 of Article 109-1.
Article 19 of the Convention establishes the obligation of States to take legislative, administrative, social, and educational measures to protect children from all forms of physical or mental violence.
Consequently, the special protection of minors under Subparagraph 8 of Part 2 of Article 109-1 is consistent with Kazakhstan's international obligation to ensure enhanced protection of children.
83. Right to a Fair Trial
The International Covenant requires:
- an independent court;
- impartiality;
- a public hearing, except for established exceptions;
- the presumption of innocence;
- the right to defense;
- the right to examine witnesses;
- the right to use the assistance of counsel.
Therefore, despite the relatively low level of the penalty prescribed by Article 109-1, it does not establish a “simplified” standard of proof.
84. Main Regulatory Legal Acts
For an attorney working on a case under Article 109-1, the following body of regulatory legal acts should be used.
1. Constitution of the Republic of Kazakhstan
Fundamental provisions:
- the right to judicial protection;
- human dignity;
- personal inviolability;
- the presumption of innocence;
- the right to qualified legal assistance.
2. Criminal Code of the Republic of Kazakhstan
Main provisions:
- Article 3 — definitions;
- Article 5 — operation of criminal law over time;
- Article 6 — retroactive effect;
- Article 10 — concept of a criminal offense;
- Article 11 — categories;
- Article 12 — repeated commission;
- Article 13 — concurrence of criminal offenses;
- Article 14 — recidivism;
- Article 15 — age;
- Article 19 — guilt;
- Article 20 — intent;
- Article 32 — necessary defense;
- Article 53 — mitigating circumstances;
- Article 54 — aggravating circumstances;
- Article 68 — reconciliation;
- Article 71 — limitation period;
- Article 79 — criminal record;
- Article 108-1;
- Article 109-1;
- Article 110.
Section of the Criminal Code of the Republic of Kazakhstan on zakonpravo.kz
85. Criminal Procedure Code of the Republic of Kazakhstan
Key provisions:
- Article 19 — presumption of innocence;
- Article 25 — evaluation of evidence;
- Article 32 — private, private-public, and public prosecution;
- Article 35 — termination of proceedings;
- Article 36 — release from criminal liability;
- Article 64 — suspect;
- Article 71 — victim;
- Article 73 — civil claimant;
- Article 74 — civil defendant;
- Articles 100–109 — complaints and appeals;
- Article 113 — circumstances subject to proof;
- Article 117 and subsequent articles — evidence;
- Article 125 — evaluation of evidence;
- Article 128 — detention;
- Article 155 — other measures of procedural coercion;
- Article 156 — undertaking to appear;
- Article 167 — civil claim;
- Article 170 — decisions on a civil claim;
- Article 270 and subsequent articles — expert examination;
- Article 306 — jurisdiction;
- Article 408 — initiation of a private prosecution case;
- Article 410 — trial of a private prosecution case;
- Article 411 — examination of the case;
- Article 412 — court decision.
86. Law “On Mediation”
This law applies to the implementation of reconciliation procedures in cases provided for by law.
However, mediation does not eliminate the criminal-law restrictions established by Article 68 of the Criminal Code.
That is:
the existence of a mediation agreement ≠ automatic termination of criminal proceedings.
It is first necessary to verify whether Article 68 can be applied.
87. Law “On Forensic Expert Activities”
This law is particularly important when the following question arises:
was harm to health caused?
It regulates:
- the status of an expert;
- the conduct of an expert examination;
- the expert opinion;
- additional and repeat expert examinations;
- the rights of participants.
Law of the Republic of Kazakhstan “On Forensic Expert Activities”
88. Subordinate Regulatory Acts
The following are of particular importance:
- Rules for the Organization and Conduct of Forensic Examinations;
- departmental regulatory acts of the Ministry of Internal Affairs;
- rules for registering reports of criminal offenses;
- Regulatory Resolutions of the Supreme Court;
- rules for conducting medical examinations;
- departmental instructions on the protection of minors.
At the same time, a subordinate regulatory act cannot alter the elements of a crime or establish additional grounds for criminal liability.
89. Regulatory Resolutions of the Supreme Court as a Source of Law
The following are of particular importance:
Supreme Court Regulatory Resolution No. 1 of May 11, 2007
On the qualification of criminal offenses against human life and health.
Supreme Court Regulatory Resolution No. 13 of December 25, 2006
On judicial practice in private prosecution cases.
Supreme Court Regulatory Resolution No. 4 of June 21, 2001
On the application of Article 68 of the Criminal Code.
Supreme Court Regulatory Resolution No. 16 of November 26, 2004
On forensic examination in criminal cases.
Supreme Court Regulatory Resolution No. 1 of June 20, 2005
On the examination of civil claims in criminal proceedings.
Supreme Court Regulatory Resolution No. 4 of April 20, 2018
On the court judgment.
90. Practical Defense Algorithm Under Part 1
If you represent the accused, it is advisable to structure the analysis in the following sequence:
Step 1
Check whether Article 109-1, Part 1, actually applies to the situation.
Step 2
Check whether physical pain occurred.
Step 3
Check whether minor harm to health was absent.
Step 4
Examine the forensic medical documents.
Step 5
Examine the video recordings.
Step 6
Establish who first used physical force.
Step 7
Check whether necessary defense applies.
Step 8
Check the subjective elements of the offense.
Step 9
Check the possibility of reconciliation.
Step 10
Check whether the private prosecution proceedings were properly formalized.
91. Defense Algorithm Under Part 2
Under Part 2, it is additionally necessary to establish:
which specific subparagraph of Part 2 is charged?
For example:
- Subparagraph 1 — two or more persons;
- Subparagraph 2 — official duties;
- Subparagraph 3 — helplessness/dependence;
- Subparagraph 4 — a group;
- Subparagraph 5 — hooligan motives;
- Subparagraph 6 — a motive of hatred;
- Subparagraph 7 — repeated commission;
- Subparagraph 8 — a minor.
It is not possible to defend against an abstract accusation.
Each qualifying element must be proven.
92. Defense Under Subparagraph 7 — Repeated Commission
The following should be requested:
- all previous episodes;
- dates;
- rulings;
- judgments;
- decisions terminating proceedings;
- evidence relating to each episode;
- information about the victims.
Article 12 of the Criminal Code must then be examined.
The key question is:
were the acts genuinely committed repeatedly, or do they constitute a single continuing offense?
93. Defense Under Subparagraph 8 — Minor
It is necessary to establish:
- the victim's exact date of birth;
- the victim's age on the date of the incident;
- documents confirming the age;
- how the accused could have known the victim's age;
- whether the accused actually knew the age;
- whether the specific qualifying element has been proven.
If the accused did not know and objectively could not have known the victim's age, the issue of “knowingly” requires special analysis.
94. Defense Where There Are No Bodily Injuries
The absence of bodily injuries, in itself, does not exclude the application of Article 109-1.
This is because the elements of the offense require physical pain, not the mandatory presence of visible injuries.
However, the absence of injuries may be relevant when assessing:
- the credibility of testimony;
- the mechanism of physical contact;
- the force applied;
- the circumstances of the conflict;
- the objectivity of the accusation.
95. Defense Where Injuries Are Present
If injuries are present, it is necessary to determine:
do they constitute minor harm to health?
If they do, Article 108-1 must be analyzed.
If they do not, Article 109-1 may remain applicable.
Therefore, the defense must examine the expert classification of the injury, not merely the fact that an injury exists.
96. Questions for the Expert
The following questions may be relevant in a battery case:
- Are there any bodily injuries?
- What is their degree of severity?
- What is the mechanism by which they were caused?
- Could they have occurred in the manner described?
- Are the injuries consistent with the stated time of the incident?
- Could the injuries have occurred as a result of a fall?
- Are there signs of impact by a blunt, hard object?
- Is it possible for injuries to occur without a blow?
- Are there signs of repeated physical impact?
At the same time, the legal classification:
“does this constitute battery under Article 109-1?”
must not be substituted by a medical expert's opinion.
The expert establishes facts requiring specialized knowledge; the court carries out the legal classification.
97. Legal Costs
In addition to the state fee, the following expenses may arise:
- attorney's fees;
- representative's fees;
- expert examination expenses;
- specialist's fees;
- expenses for obtaining documents.
The issue of recovering such expenses is resolved in accordance with the established procedural procedure.
According to published case law in private prosecution cases, courts have ordered convicted persons to reimburse representative's fees and other procedural expenses.
98. Appeal
A judgment of a court of first instance may be appealed by the parties in accordance with the Criminal Procedure Code.
For Part 1 of Article 109-1, this may include:
- an appeal by the private prosecutor;
- an appeal by the defendant;
- an appeal by defense counsel;
- a prosecutor's submission in cases provided for by law.
For Part 2, the general rules governing appeals against judgments apply.
99. What the Appellate Court Examines
The appellate court may examine:
- the correctness of the legal classification;
- the sufficiency of the evidence;
- the admissibility of the evidence;
- the punishment imposed;
- the civil claim;
- procedural violations;
- compliance with the right to defense;
- the findings of the court of first instance.
In the case involving two victims, the Karaganda Regional Court examined the arguments of the appeal and upheld the judgment without modification.
Publication on the Examination of an Appeal by the Karaganda Regional Court
100. Typical Errors by the Prosecution
The most significant errors are as follows:
1. Incorrect legal classification
Minor harm to health was actually caused, but Article 109-1 was charged.
2. Failure to prove physical pain
There is only a general conflict.
3. Failure to prove a qualifying element
For example, a charge under Subparagraph 7 has been brought, but separate episodes have not been proven.
4. Failure to prove knowing awareness
Under Subparagraph 8.
5. Replacing proof of motive with an assumption
Especially under Subparagraphs 5 and 6.
6. Ignoring necessary defense
7. Violation of the right to defense
8. Improper examination of video recordings.
101. Typical Defense Errors
The following are no less dangerous:
- denying any physical contact when the video records it;
- ignoring the issue of minor harm to health;
- absence of alternative legal qualification;
- refusal to analyze necessary defense;
- absence of a motion for a repeat examination;
- failure to take measures to preserve video recordings;
- ignoring the issue of reconciliation;
- failure to file a civil claim in a timely manner;
- absence of an analysis of the qualifying element;
- lack of preparation of defense witnesses.
102. Strategy of the Victim
It is advisable for the victim to record the following as quickly as possible:
- the fact that the incident occurred;
- medical consequences;
- the location;
- witnesses;
- video;
- audio;
- correspondence;
- calls;
- the call to the police;
- the visit to a trauma center.
It is particularly important to preserve the original electronic evidence.
103. Strategy under Part 1 — Private Prosecution
The practical structure of the complaint:
I. Court
II. Details of the private prosecutor
III. Details of the accused
IV. Circumstances of the incident
V. Legal qualification
VI. Evidence
VII. Witnesses
VIII. Medical documents
IX. Civil claim
X. Motions
XI. Prayer for relief.
104. Strategy under Part 2 — Report of a Criminal Offense
For Part 2, it is advisable to structure the report differently.
It is necessary to state expressly:
I request that the report of a criminal offense be registered and that a legal assessment be given to the actions under Part 2 of Article 109-1 of the Criminal Code of the Republic of Kazakhstan.
Thereafter, the specific qualifying element must be described in detail.
For example:
the victim was 15 years old, the accused was the victim’s teacher and reliably knew the victim’s age.
Or:
the violence was committed against two victims within the framework of a single conflict.
105. Special Significance of the Unified Register of Pre-Trial Investigations
In cases of public prosecution, registration of the report and commencement of the pre-trial investigation are of substantial importance.
If the report is not registered or the authority effectively evades making a procedural decision, it is possible to appeal the actions or omissions in accordance with the Criminal Procedure Code.
106. Judicial Review
The investigating judge considers complaints provided for by the Criminal Procedure Code concerning decisions and actions of criminal prosecution authorities.
Article 306 of the Criminal Procedure Code expressly provides for the relevant powers of the investigating judge.
Consequently, where the rights of the victim or suspect are violated, it is necessary to use not only appeals to the prosecutor’s office but also the judicial mechanism provided for by the Criminal Procedure Code.
107. Specific Features of Evidence in a Domestic Conflict
In most battery cases, the following are absent:
- independent witnesses;
- professional video recording;
- obvious serious injuries.
Therefore, the evidentiary system often looks as follows:
testimony of the victim + medical documents + circumstantial evidence + video/audio.
The court is obliged to assess their totality.
108. The “Word Against Word” Situation
The mere existence of two opposing versions does not automatically mean acquittal.
However, the victim’s testimony does not have predetermined evidentiary force either.
The court must establish:
- which version is supported by objective data;
- which version is consistent;
- whether there are motives for making a false accusation;
- whether there is external corroboration.
109. Provocation of a Conflict
Provocation by the victim does not in itself give a person the right to beat another person.
However, it may be relevant to:
- necessary defense;
- motives;
- assessment of the circumstances;
- sentencing;
- the civil claim.
110. State of Intoxication
Alcohol intoxication does not automatically exempt a person from criminal liability.
However, the specific circumstances of intoxication may be examined by the court when imposing a sentence.
At the same time, it is necessary to distinguish between:
- voluntary intoxication;
- a pathological condition;
- legal insanity.
111. Insignificance
Article 10 of the Criminal Code provides for the concept of insignificance.
However, the application of this concept to Article 109-1 requires particularly careful analysis.
If the following are established:
- intentional violent conduct;
- physical pain;
- compliance with the elements of the offense,
the mere absence of a serious injury does not automatically mean that the offense is insignificant.
This is precisely why the legislature specifically criminalized battery as an independent criminal offense.
112. Punishment
When imposing a sentence, the court must take into account:
- the nature of the act;
- the degree of public danger;
- the personality of the guilty person;
- the presence of mitigating circumstances;
- the presence of aggravating circumstances;
- conduct after the commission of the act;
- compensation for harm;
- admission of guilt;
- remorse;
- the presence of children;
- health condition;
- previous offenses.
113. Practical Significance of Compensation for Harm
Even where Article 68 is inapplicable, voluntary compensation for harm may be relevant when individualizing the punishment.
However:
compensation for harm does not automatically eliminate the elements of the crime.
It may be relevant as a circumstance characterizing the person’s conduct after the commission of the act.
114. Compulsory Payment
When delivering a guilty verdict, it is necessary to take into account the legislation in force on compulsory payments and the Victims’ Compensation Fund, if the relevant provisions apply to the specific criminal offense.
Consequently, when preparing a calculation of the consequences of the verdict, it is necessary to take into account not only:
a fine / arrest / community service,
but also:
- the civil claim;
- procedural costs;
- other monetary recoveries.
115. Specific Features of Part 2 in Cases of Domestic Violence
If battery is committed against:
- a spouse;
- a former spouse;
- a child;
- another family member,
it is necessary additionally to check the legislation on the prevention of offenses and protection against violence.
The following may apply:
- protective orders;
- special preventive measures;
- a prohibition on approaching;
- other measures provided for by law.
116. When Article 109-1 Does Not Apply
The provision may be inapplicable if:
- physical pain is absent;
- intent is absent;
- necessary defense exists;
- causation is absent;
- the person’s participation has not been proven;
- minor harm to health is established — Article 108-1 may apply;
- the elements of torture are present — Article 110;
- a more serious crime is present;
- there is no event constituting a criminal offense.
117. Relationship with the Code of Administrative Offenses
Before battery was criminalized, the relevant actions were regulated by administrative legislation in certain cases.
After the introduction of Article 109-1, it is necessary to distinguish particularly carefully between:
- a criminal offense;
- an administrative offense;
- the absence of an offense.
The same incident cannot be arbitrarily qualified simultaneously under the Criminal Code and the Code of Administrative Offenses without taking into account the rules governing the concurrence of legal provisions.
118. Normative Legal Acts and Hierarchy
When preparing a legal position, the following hierarchy must be observed:
Constitution
↓
International treaties ratified by the Republic of Kazakhstan
↓
Criminal Code / Criminal Procedure Code
↓
Laws
↓
Normative resolutions of the Supreme Court
↓
Subordinate normative legal acts
↓
Departmental acts.
A subordinate act cannot expand the elements of Article 109-1.
119. International Law and National Procedure
If an international treaty ratified by Kazakhstan establishes rules different from those provided for by domestic law, the rules of the international treaty apply within the limits provided for by the Constitution and legislation.
This is particularly important in relation to:
- ensuring a fair trial;
- protecting children;
- protection against cruel treatment;
- ensuring the right to a lawyer;
- compliance with the presumption of innocence.
120. Final Distinction Between Parts 1 and 2
| Issue | Article 109-1, Part 1 | Article 109-1, Part 2 |
|---|---|---|
| Basic elements of the offense | Yes | Yes |
| Physical pain | Yes | Yes |
| Minor harm to health | Must be absent | Must be absent |
| Private prosecution | Yes | No |
| Public prosecution | No, as a general rule | Yes |
| Reconciliation | Generally possible | Depends on Article 68 |
| Minor victim | No specific element | Paragraph 8 |
| Two victims | No specific element | Paragraph 1 |
| Repeated commission | No | Paragraph 7 |
| Hooligan motive | No | Paragraph 5 |
| Motive of hatred | No | Paragraph 6 |
| Group | No | Paragraph 4 |
| Dependency | No | Paragraph 3 |
| Official/professional activity | No | Paragraph 2 |
| Maximum period of arrest | 25 days | 50 days |
| Fine | Up to 80 monthly calculation indices | 100–200 monthly calculation indices |
121. Practical Table of Sanctions for 2026
At a monthly calculation index of 4,325 tenge:
| Sanction | Amount |
|---|---|
| 80 monthly calculation indices | 346,000 ₸ |
| 100 monthly calculation indices | 432,500 ₸ |
| 150 monthly calculation indices | 648,750 ₸ |
| 200 monthly calculation indices | 865,000 ₸ |
Thus, the maximum fine under Part 1 is 346,000 tenge, while the range of the fine under Part 2 is from 432,500 to 865,000 tenge.
122. Practical Evidence Map for the Victim
Recommended body of evidence:
A. Medical documents
- trauma center;
- polyclinic;
- forensic medical examination.
B. Electronic evidence
- video;
- audio;
- correspondence;
- photographs.
C. Witnesses
- eyewitnesses;
- employees;
- relatives — to the extent permissible;
- persons to whom the victim reported the incident immediately after it occurred.
D. Documents
- report;
- protocol;
- decisions;
- expert opinion.
123. Practical Evidence Map for the Defense
The defense must collect:
- the complete video recording;
- video footage from before the conflict;
- video footage from after the conflict;
- testimony of all eyewitnesses;
- information about the initial report;
- medical documents;
- an alternative mechanism of injury;
- information about the victim’s actions;
- information concerning the existence of necessary defense;
- information concerning the impossibility of knowing the victim’s age;
- documents relating to previous episodes under paragraph 7;
- evidence of the absence of a special motive.
124. Main Conclusion on Article 109-1
Article 109-1 appears on its face to be a relatively simple provision; however, in practice, it contains a large number of qualification and procedural issues.
The main points are as follows:
Under Part 1
This is private prosecution.
The main procedural form is a complaint filed directly with the court.
Under Part 2
This is public prosecution.
The proceedings are conducted by state criminal prosecution authorities.
Under both parts
It is necessary to prove:
- the specific violent act;
- physical pain;
- causation;
- intentional guilt;
- the absence of minor harm to health;
- and, under Part 2, the specific qualifying element.
Where the victim is a minor
Paragraph 8 of Part 2 and the restrictions under Article 68 of the Criminal Code acquire particular significance.
In cases of repeated commission
Article 12 of the Criminal Code must be applied strictly, and repeated commission must be distinguished from a continuing offense.
Where injuries are present
It is necessary to check the distinction from Part 1 of Article 108-1 of the Criminal Code.
Where systematic violence is present
It is necessary to examine Article 110 of the Criminal Code, “Torture.”
125. Main List of References for Practical Work
Criminal Code of the Republic of Kazakhstan:
Article 12 — Repeated Commission of Criminal Offenses
Article 68 — Exemption from Criminal Liability in Connection with Reconciliation
Article 71 — Exemption from Criminal Liability Due to Expiration of the Limitation Period
Criminal Procedure Code of the Republic of Kazakhstan:
Article 32 — Types of Criminal Prosecution
Article 125 — Assessment of Evidence
Article 155 — Grounds for Applying Other Measures of Procedural Coercion
Article 167 — Filing a Civil Claim
Article 306 — Criminal Cases Within the Jurisdiction of a District Court and a Court Equated to It
Article 408 — Initiation of Private Prosecution
Article 411 — Consideration of a Private Prosecution Case at a Court Hearing
Article 412 — Court Decision in a Private Prosecution Case
Normative Resolutions of the Supreme Court of the Republic of Kazakhstan:
Normative Resolution No. 1 of May 11, 2007 — Criminal Offenses Against Human Life and Health
Normative Resolution No. 13 of December 25, 2006 — Judicial Practice in Private Prosecution Cases
Normative Resolution No. 16 of November 26, 2004 — Forensic Examination in Criminal Cases
Normative Resolution No. 1 of June 20, 2005 — Consideration of a Civil Claim in Criminal Proceedings
126. Final Legal Scheme
For practical application, Article 109-1 can be reduced to the following algorithm:
Physical impact
↓
Physical pain was caused
↓
Was minor harm to health caused?
Yes → analysis of Article 108-1
No → Article 109-1
↓
Is there a qualifying element?
No → Part 1
Yes → Part 2
↓
Part 1
→ private prosecution → complaint to the court → possibility of reconciliation subject to compliance with Article 68 → limitation period under Article 71 → civil claim → special procedure under Articles 408–412 of the Criminal Procedure Code.
Part 2
→ public prosecution → state criminal prosecution → pre-trial investigation → prosecutor → court → special restrictions under Article 68 → the qualifying element must be proven independently.
Key Practical Conclusion
When defending a person or representing a victim under Article 109-1, it is not possible to limit the analysis to the question “Was there a blow or was there not?”
The legally significant structure is considerably broader:
specific act → physical pain → causation → guilt → absence of minor harm to health → presence/absence of necessary defense → presence/absence of a qualifying element → correct type of criminal prosecution → admissibility of reconciliation → proper jurisdiction → evidence → civil claim → punishment.
It is precisely the consistent examination of all these elements that makes it possible to determine whether the elements of Article 109-1 are present, whether its part and paragraph have been correctly identified, whether the procedural requirements have been observed, and whether there are grounds for terminating the case, acquittal, reclassification, or modification of the punishment.
Clarify the procedural pathwayAdd a prominent legal disclaimer
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