Commentary on Article 1. Criminal Legislation of the Republic of Kazakhstan of the Criminal Code of the Republic of Kazakhstan
The criminal legislation of the Republic of Kazakhstan consists of this Criminal Code of the Republic of Kazakhstan. Other laws providing for criminal liability shall be applied only after their incorporation into this Code.
This Code is based on the Constitution of the Republic of Kazakhstan and the universally recognized principles and norms of international law. The Constitution of the Republic of Kazakhstan has supreme legal force and direct effect throughout the territory of the Republic. In the event of contradictions between the provisions of this Code and the Constitution of the Republic of Kazakhstan, the provisions of the Constitution shall apply. The provisions of this Code recognized as unconstitutional, including those infringing upon the human and civil rights and freedoms enshrined in the Constitution of the Republic of Kazakhstan, shall lose their legal force and shall not be subject to application. Normative resolutions of the Constitutional Council and the Supreme Court of the Republic of Kazakhstan constitute an integral part of the criminal legislation of the Republic of Kazakhstan.
International treaties ratified by the Republic of Kazakhstan shall have priority over this Code. The procedure and conditions for the operation within the territory of the Republic of Kazakhstan of international treaties to which the Republic of Kazakhstan is a party shall be determined by the legislation of the Republic of Kazakhstan.
Article 1 of the Constitution establishes that the Republic of Kazakhstan proclaims itself a democratic, secular, legal and social state, whose highest values are the human being, his or her life and freedoms. Having declared itself a state governed by the rule of law, it is particularly important to ensure the supremacy of law in all areas of state and public life, especially when deciding issues concerning the prosecution of a person, and the recognition of that person as guilty of committing a criminal offence. The application of criminal law presupposes its strict observance, in precise accordance with its letter and spirit, by all state bodies, officials and ordinary citizens. Therefore, a law enforcement authority cannot properly implement the law without understanding the idea underlying the legislator's definition of its concept; still less can effective law enforcement activities be discussed in such circumstances.
According to Part 1 of Article 1 of the Criminal Code of the Republic of Kazakhstan, the criminal legislation of the Republic of Kazakhstan exists in the form of the Criminal Code, which is its sole source.
In accordance with the Law of the Republic of Kazakhstan dated 6 April 2016, “On Legal Acts”, the legislation of the Republic of Kazakhstan is understood as the body of normative legal acts adopted in accordance with the established procedure (subparagraph 16) of Article 1), while a code is a law that consolidates and systematizes legal provisions regulating homogeneous and most important public relations specified in Article 8 of the said Law (subparagraph 11) of Article 1). The list of such relations includes the most important public relations associated with bringing persons to criminal liability (subparagraph 14) of Article 8).
Thus, criminal law is a systematized legislative act adopted by the Parliament of the Republic of Kazakhstan, the legal provisions of which establish the principles and grounds of criminal liability, determine which socially dangerous acts against individuals, society or the state constitute criminal offences, namely crimes or criminal misdemeanours, and establish punishments and other measures of criminal legal influence applicable to persons who have committed criminal offences.
It also follows from Part 1 of the commented article that other laws containing criminal law provisions may be adopted. Other laws providing for criminal liability should be understood as laws of the Republic of Kazakhstan introducing amendments and additions to the Criminal Code of the Republic of Kazakhstan, in particular, on matters concerning existing provisions on criminal offences or the amendment of existing provisions, the introduction of new elements of criminal offences, amendments and additions to types of punishment and other measures of criminal legal influence, or the mitigation or tightening of sanctions, and so forth. New laws providing for criminal liability are not applied independently by law enforcement authorities but are subject to incorporation into the Criminal Code.
In certain Western countries, the Criminal Code is not the sole criminal law legislative act. For example, Germany has legislation providing for liability for environmental, economic and transport-related crimes. At the same time, many criminal law provisions of this legislation are not incorporated into the Criminal Code but exist and operate alongside it.
The legal regulation of criminal liability matters exclusively at the level of the Criminal Code is of progressive significance, since it reduces the possibility of an unjustified expansion of criminal repression and creates additional guarantees of legality, justice and humanism in the field of criminal justice. In accordance with Article 4 of the Criminal Code, the basis of criminal liability is the commission of a criminal offence, that is, an act containing all the elements of a crime or criminal misdemeanour provided for exclusively by the Criminal Code and by no other normative legal act. The validity of this provision is also justified by the fact that the rules of criminal legislation are addressed not only to legal specialists and law enforcement authorities, but equally to all other citizens. The multiplicity of formal sources of criminal law creates significant difficulties for the latter in understanding legal knowledge and gives rise to ignorance of a number of criminal law prohibitions, thereby reducing the preventive role of criminal law and the effectiveness of ensuring the rights and freedoms of citizens without requiring them to resort to the services of specialists. It should be noted that the content of blanket provisions is, in essence, determined by laws and other normative legal acts belonging to other branches of law. However, this circumstance does not indicate that criminal law matters are regulated by laws other than the Criminal Code. Even in such cases, only criminal law determines the parameters of a criminal offence, while the provisions of other legislative and normative legal acts serve to disclose the content of criminal law provisions.
In accordance with paragraph 2 of Article 4 of the Basic Law of the country, the Constitution of the Republic of Kazakhstan has supreme legal force and direct effect throughout the territory of the country. This means that any laws and other legal acts adopted in Kazakhstan, including criminal laws, must not contradict its Constitution.
This constitutional principle is implemented in Part 2 of the commented article, which establishes the priority of constitutional provisions over other legal provisions. The Criminal Code of the Republic of Kazakhstan, like other laws of our country, is based on the Constitution of the Republic of Kazakhstan. This means that the provisions of criminal legislation are structured taking into account the provisions of the Constitution of the Republic of Kazakhstan and incorporate their fundamental principles. It may be said that the provisions of the Constitution underpin the provisions of criminal law, form the basis of criminal legislation and are elaborated in it. The provisions of the Constitution of the Republic of Kazakhstan form the basis of many principles of criminal law.
Without merging with criminal law or becoming criminal law provisions themselves, constitutional prescriptions nevertheless form part of the system of legal provisions without reference to which a criminal law provision cannot be applied. The possibility of directly applying constitutional provisions in the field of criminal law regulation follows from Article 4 of the Constitution, according to which it has direct effect, and from the meaning of Article 1 of the Criminal Code. However, attention should be drawn to the fact that, according to this article, only provisions establishing criminal liability are subject to mandatory incorporation into the Criminal Code. Consequently, those constitutional provisions that establish exceptions to a general prohibition or provide for limitations on the scope and forms of criminal repression may be applied directly.
The direct application by a court of the provisions of the Constitution of the Republic of Kazakhstan in the sphere of criminal law means that there is a conflict between the articles of the Criminal Code and the Constitution or a gap in the General Part of criminal legislation. The optimal relationship between the Constitution and the Criminal Code consists in ensuring that all provisions of the Criminal Code and the practice of their application comply with constitutional provisions, thereby making the direct application by a court of the provisions of the Constitution of the Republic of Kazakhstan unnecessary. This is achievable if the provisions of the Constitution of the Republic of Kazakhstan are strictly observed by the legislator itself in the field of criminal law regulation. If any provision of the Criminal Code of the Republic of Kazakhstan contradicts the Constitution of the Republic of Kazakhstan, it shall not be applied, and the provisions of the Constitution shall prevail.
The Constitution of the Republic of Kazakhstan determines the range of socially significant values subject to protection, including by means of criminal law. Thus, for example, the Constitution protects the right to life (Article 15), personal liberty (Article 16), the inviolability of human dignity (Article 17), the inviolability of private life, personal and family privacy, and the protection of one's honour and dignity (Article 18), the inviolability of the home (Article 25), private property (Article 26), and health protection (Article 29). All these rights are protected by criminal law. Thus, if provisions of criminal law are recognized as unconstitutional, including those infringing upon the human and civil rights and freedoms enshrined in the Constitution of the Republic of Kazakhstan, they shall lose their legal force and shall not be subject to application.
The Constitution of the Republic of Kazakhstan contains a number of provisions of a criminal law nature (provisions concerning the death penalty, the right to necessary defence, the retroactive effect of law, the category of persons who are not liable for failure to report a committed crime, the inadmissibility of applying criminal law by analogy, and others).
If a question arises concerning the unconstitutionality of a particular provision of criminal law that is to be applied in a specific case, and the court considers that the law or other normative legal act subject to application infringes upon the human and civil rights and freedoms enshrined in the Constitution, then, in accordance with Article 78 of the Constitution of the Republic of Kazakhstan, it is obliged to suspend proceedings in the case and submit a referral to the Constitutional Council requesting that the act be recognized as unconstitutional. Pursuant to paragraph 2 of Article 72 of the Constitution of the Republic of Kazakhstan, the Constitutional Council considers such referrals from courts. The recognition by the Constitutional Council of the Republic of Kazakhstan that a law applied by a court in a criminal case does not comply with the Constitution constitutes a new circumstance entailing the reopening of proceedings in the criminal case.
The Criminal Code of the Republic of Kazakhstan is also based on the universally recognized principles and norms of international law (Part 2 of the commented article). A universally recognized norm of international law should be understood as a rule of conduct accepted and recognized by the international community of states as a whole as legally binding. Universally recognized principles of international law are understood as fundamental peremptory norms of international law accepted and recognized by the international community of states as a whole, from which no derogation is permitted.
The principles and norms of international law are enshrined in international covenants, conventions and other documents (in particular, the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights), as well as in international treaties.
In accordance with paragraph 3 of Article 4 of the Constitution of the Republic of Kazakhstan, international treaties ratified by the Republic of Kazakhstan shall have priority over its laws. The procedure and conditions for the operation within the territory of the Republic of Kazakhstan of international treaties to which Kazakhstan is a party shall be determined by legislation.
According to subparagraph 6) of Article 1 of the Law of the Republic of Kazakhstan dated 30 May 2005, “On International Treaties of the Republic of Kazakhstan”, an international treaty of the Republic of Kazakhstan means an international agreement concluded by the Republic of Kazakhstan with a foreign state (foreign states) or an international organization (international organizations) in written form and governed by international law, irrespective of whether such an agreement is contained in one document or in several related documents, and irrespective of its specific designation (for example, treaty, convention, covenant, agreement, etc.).
International treaties concluded on behalf of the Republic of Kazakhstan are intergovernmental treaties; those concluded on behalf of the Government of the Republic of Kazakhstan are governmental treaties; and those concluded on behalf of central executive bodies, as well as state bodies directly subordinate and accountable to the President of the Republic of Kazakhstan, are interdepartmental treaties.
An international treaty of the Republic of Kazakhstan enters into force in the manner and within the time limits provided for in the treaty or agreed upon by its participants. In the absence of an agreement, an international treaty enters into force as soon as the consent of all states participating in the negotiations to be bound by the treaty has been expressed (Article 24 of the 1969 Vienna Convention on the Law of Treaties).
An international treaty is subject to application if the Republic of Kazakhstan has expressed its consent to be bound by that international treaty through the signing of the treaty, the exchange of documents, ratification of the treaty, its acceptance, approval, accession to the treaty, or any other method agreed upon by the contracting parties. According to subparagraph 11) of Article 1 of the Law of the Republic of Kazakhstan “On International Treaties of the Republic of Kazakhstan”: “...ratification, approval, acceptance and accession mean, depending on the circumstances, an international act bearing such designation, performed on the basis of the relevant normative legal act, through which the Republic of Kazakhstan expresses, at the international level, its consent to be bound by an international treaty”.
In accordance with paragraph 2 of the Resolution of the Constitutional Council of the Republic of Kazakhstan dated 18 May 2006, “On the Official Interpretation of Subparagraph 7) of Article 54 of the Constitution of the Republic of Kazakhstan”, acts of the Republic of Kazakhstan on the ratification of international treaties and acts of the Republic of Kazakhstan on accession to international treaties are equivalent in their legal force and legal consequences. In this regard, international treaties whose binding nature for Kazakhstan has been established by normative legal acts on accession to international treaties adopted by the Parliament of the Republic are equated with international treaties ratified by the Republic of Kazakhstan.
One of the distinctive features of Kazakhstani criminal law is the enshrining of a provision according to which provisions establishing criminal liability must mandatorily be incorporated into the Criminal Code. It follows from Part 2 of Article 1 of the Criminal Code that the universally recognized principles and norms of international law form the basis of its provisions, that is, they have already been taken into account by the legislator. As for new international treaties affecting matters of criminal law, if signed and ratified by the Republic of Kazakhstan, they become elements of the system of criminal law provisions only through the introduction of corresponding amendments to the Criminal Code. This is achieved either by incorporating the text of the prescriptions of international law provisions into the wording of a criminal law provision or by creating an original provision of national criminal law on the basis of such prescriptions.
“International legal provisions establishing the elements of criminal offences,” states the Normative Resolution of the Supreme Court of the Republic of Kazakhstan “On the Application of the Provisions of International Treaties of the Republic of Kazakhstan”, “must be applied in cases where a provision of the Criminal Code expressly establishes the necessity of applying an international treaty of the Republic of Kazakhstan (for example, Articles 162 and 163 of the Criminal Code).”
When considering a case in which the provisions of the Criminal Code establish criminal liability for a crime prohibited by an international treaty of the Republic of Kazakhstan, the court is obliged to examine the content of the international agreements of the Republic of Kazakhstan and the provisions of criminal law establishing criminal liability for an act prohibited by an international treaty, in order to establish whether all the elements of the criminally punishable act specified in the international treaty of the Republic of Kazakhstan have been incorporated into criminal law, and to clarify the issue of ratification, the date of entry into force, and so forth.
Thus, despite the fact that international treaties ratified by the Republic have priority over its laws, it should be borne in mind that international treaties containing provisions of a criminal law nature, while constituting an integral part of Kazakhstani law, cannot in practice be applied directly within the territory of the Republic. This is because, firstly, such treaties expressly establish the obligation of states to ensure compliance with the obligations provided for by the treaty by establishing the punishability of certain crimes under domestic (national) law (for example, the 1961 Single Convention on Narcotic Drugs, the 1979 International Convention against the Taking of Hostages, and the 1970 Convention for the Suppression of Unlawful Seizure of Aircraft); secondly, many international treaties (conventions) merely express the intention of the participating states to combat certain crimes without disclosing their elements; thirdly, treaties do not specify sanctions, and even where they indicate the type of punishment, they do not specify the amounts or terms of punishment.
For this reason, the norms of international law cannot be applied within the territory of Kazakhstan without their incorporation into the Criminal Code. Since the provisions of national legislation must comply with the international legal obligations of the Republic of Kazakhstan in combating crime, the state, in accordance with the ratified international treaty, introduces the corresponding amendments and changes to the Criminal Code. In addition, many of its articles expressly refer to the norms of international law, for example, Parts 3 and 4 of Article 7; Parts 2, 3 and 4 of Article 8; Articles 9, 162, 163 of the Criminal Code, and others.
For the first time, the Criminal Code recognizes the normative resolutions of the Constitutional Council and the Supreme Court of the Republic of Kazakhstan as an integral part of the country's criminal legislation. In accordance with paragraph 1 of Article 4 of the Constitution, the normative resolutions of the Constitutional Council and the Supreme Court are classified as the current law of the Republic.
According to paragraph 1 of Article 5 of the Law of the Republic of Kazakhstan “On Legal Acts”, normative resolutions of the Constitutional Council of the Republic of Kazakhstan are based exclusively on the Constitution of the Republic of Kazakhstan, and all other normative legal acts may not contradict them.
Normative resolutions of the Constitutional Council of the Republic of Kazakhstan possess the legal force of the provisions of the Constitution of the Republic of Kazakhstan on the basis of which they were adopted (paragraph 2 of Article 5 of the said Law).
Normative resolutions of the Supreme Court of the Republic of Kazakhstan contain explanations on matters of judicial practice (paragraph 3 of Article 5 of the said Law).
Without reducing or expanding the scope of criminal repression, it provides recommendations on the application of the Criminal Code of the Republic of Kazakhstan in strict accordance with its letter and spirit.
In accordance with paragraph 1 of Article 17 of the Constitutional Law of the Republic of Kazakhstan dated 25 December 2000, “On the Judicial System and Status of Judges of the Republic of Kazakhstan”, the Supreme Court is the highest judicial body in civil, criminal and other cases within the jurisdiction of local and other courts, exercises the functions of a cassation instance in relation to them and provides explanations on matters of judicial practice by adopting normative resolutions.
According to subparagraph 3) of paragraph 1 of Article 22 of the said Constitutional Law, the plenary session of the Supreme Court adopts normative resolutions, provides explanations on matters of judicial practice and submits proposals for the improvement of legislation.
In conclusion, I would like to emphasize that there is an ongoing debate in the science of criminal law regarding the sources of criminal law. A concept of a dualistic (dual) approach to understanding sources has emerged. According to this approach, in the narrow (direct) sense, the sole source of criminal law is the Criminal Code of the Republic of Kazakhstan, since only it contains criminal law provisions establishing the criminality and punishability of acts, and all new laws providing for criminal liability are subject to incorporation into the Criminal Code (Part 1 of Article 1, Part 2 of Article 2 and Article 4 of the Criminal Code).
In the broader (general) sense, the sources of criminal law, in addition to the Criminal Code itself, should include the Constitution of the Republic of Kazakhstan, the universally recognized principles and norms of international law and international treaties of the Republic of Kazakhstan, other normative legal acts (particularly in relation to blanket provisions), resolutions of the Parliament of the Republic of Kazakhstan declaring amnesty, and decisions of the Constitutional Council and the Supreme Court of the Republic of Kazakhstan.
There is also a point of view according to which it is necessary to distinguish between the concepts of “source of criminal law” and “source of criminal legislation”. With regard to the source of criminal law, the Constitution of the Republic of Kazakhstan and the universally recognized principles and norms of international law may be included alongside the Criminal Code of the Republic of Kazakhstan (Part 2 of Article 1 of the Criminal Code).
It appears that such a definition of sources fits entirely within the already established understanding of the source of criminal law in the narrow and broad senses and is worthy of use in academic discourse.
Commentary on the Criminal Code of the Republic of Kazakhstan dated 2021 by Isidor Shamilovich Borchashvili, Honoured Figure of Kazakhstan, Doctor of Law, Professor, Academician of the Kazakhstan National Academy of Natural Sciences, member of the Scientific Advisory Councils under the Constitutional Council of the Republic of Kazakhstan and the Supreme Court of the Republic of Kazakhstan, member of the working group on reform of the law enforcement system under the Security Council of the Republic of Kazakhstan, Honoured Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.
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