Commentary on Article 106. Intentional Infliction of Grievous Bodily Harm of the Criminal Code of the Republic of Kazakhstan

• 1. Intentional infliction of grievous bodily harm —
• shall be punishable by restriction of liberty for a term of three to eight years or imprisonment for the same term.
• 2. The same act committed:
• 1) against two or more persons;
• 2) against a person or their close relatives in connection with that person's performance of official duties or the fulfilment of professional or public obligations;
• 3) against a person who is known to the perpetrator to be in a helpless condition, as well as an act associated with the kidnapping of a person or the taking of a hostage;
• 4) with particular cruelty;
• 5) by a group of persons or a group of persons acting by prior conspiracy;
• 6) for mercenary motives, as well as for hire;
• 7) for hooligan motives;
• 8) on the grounds of social, national, racial or religious hatred or enmity;
• 9) for the purpose of using the victim's organs or tissues;
• 10) repeatedly;
• 11) against a person known to be a minor;
• 12) in a state of emergency or during mass riots, —
• 3. shall be punishable by imprisonment for a term of six to ten years.
•  
• Acts provided for in Parts One or Two of this Article which have negligently resulted in the death of the victim or have been committed by a criminal group —
• shall be punishable by imprisonment for a term of eight to twelve years.

The public danger of this crime lies in the seriousness of the act itself, the consequences that have occurred and, finally, the prevalence of such acts. By committing this crime, the perpetrator encroaches upon one of the most valuable personal attributes — a person's health — sometimes causing irreparable damage: depriving the victim of the ability to work, rendering the victim disabled and thereby ending the victim's professional career. All of this often results in death. In the dynamics of crime, the intentional infliction of grievous bodily harm occupies a dominant position.

Criminal law protects the health of every person against criminal encroachments, regardless of their age, viability or state of illness.

Crimes against health may be defined as the unlawful, intentional or negligent infliction of harm upon the health of another person. Lawful infliction of harm upon a victim's health (in cases of necessary self-defence, extreme necessity, justified risk, etc.) cannot be regarded as a crime against health.

The object of the crime is the health of another person. The Constitution of the World Health Organization, adopted on 22 June 1946, defines health as “a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity”. A similar definition is provided in the Code of the Republic of Kazakhstan “On Public Health and the Healthcare System”.

Infliction of harm upon one's own health is regarded as a crime only where it constitutes a means of encroaching upon another protected object. For example, self-mutilation for the purpose of evading or refusing to perform military service constitutes a crime against military service (Article 443 of the Criminal Code).

As a general rule, the victim's consent to the infliction of harm upon their health does not release the perpetrator from liability. The infliction of bodily harm upon another participant in a sporting competition by one participant cannot be regarded as unlawful if the competition was known in advance to involve mutual risk and the mandatory rules established for that particular sport were not violated. However, if harm is intentionally inflicted upon an opponent as a result of a violation of the established competition rules, such conduct, where the requisite guilt is present, entails criminal liability on general grounds.

In accordance with paragraph 383 of the Rules for the Organisation and Conduct of Forensic Examinations and Studies in Forensic Examination Bodies, approved by Order No. 484 of the Minister of Justice of the Republic of Kazakhstan dated 27 April 2017, harm to health means a violation of the anatomical integrity of organs (tissues) or their physiological functions (bodily injuries), or diseases or pathological conditions arising as a result of exposure to various environmental factors: mechanical, physical, chemical, biological or psychogenic, as well as consequences resulting from defects in the provision of medical care that have led to a health disorder or death.

According to paragraph 31 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan “On the Qualification of Certain Criminal Offences Against Human Life and Health”, infliction of harm to health means the unlawful violation of the anatomical integrity of the tissues of the human body or other actions resulting in damage to organs or disruption of their normal functioning.

The degree of severity of harm to health is determined by means of a forensic medical examination. Under Article 271 of the Criminal Procedure Code, such an examination is mandatory, and its findings are subject to thorough examination and assessment together with the other evidence.

The objective element of the crime under consideration is characterised by a socially dangerous act (action or omission), consequences consisting in the unlawful infliction of grievous bodily harm upon another person, and a causal relationship between the criminal act and the consequences that have occurred.

When grievous bodily harm is inflicted, both physical means (striking blows, firing a weapon, etc.) and psychological means (threats or fright resulting in mental illness) may be employed. The perpetrator may use various instruments and devices, natural forces, sources of increased danger, animals, etc. Any method of committing the act is possible, except in cases where the method has qualifying significance (Part 2 of Article 106 and Part 2 of Article 107 of the Criminal Code), characterises privileged offences (Articles 111, 112 and 113 of the Criminal Code), or constitutes an essential element of an offence (Article 110 of the Criminal Code).

Where harm is inflicted by omission, the perpetrator fails to perform actions that could have prevented harm to another person's health, provided that the perpetrator was obliged to perform those actions and had the ability to do so (for example, medical personnel failing to administer medication to a patient in a timely manner, thereby causing a disorder of the patient's health).

In accordance with subparagraph 11) of Article 3 of the Criminal Code, grievous bodily harm means harm to a person's health that is dangerous to their life, or other harm to health resulting in: loss of sight, speech or hearing, or the loss of any organ; loss of an organ's functions; permanent disfigurement of the face; a health disorder associated with a significant permanent loss of general working capacity of at least one-third; complete loss of professional working capacity; termination of pregnancy; mental disorder; or drug addiction or toxicomania.

Most of the above consequences and disorders are established in the course of a forensic medical examination.

The qualifying criteria for grievous bodily harm are:

danger to human life;

injuries that are not dangerous to life but which, by virtue of their outcome and consequences following certain forms of impact, have resulted in grievous bodily harm: loss of sight, speech or hearing, or loss of any organ or its functions; permanent disfigurement of the face; a health disorder associated with a significant permanent loss of general working capacity of at least one-third (33% or more); complete loss of professional working capacity; termination of pregnancy; mental disorder (mental illness); drug addiction or toxicomania.

Harm to health dangerous to life shall include both bodily injuries and pathological conditions arising from exposure to various external factors that may threaten the victim's life.

The following shall constitute harm to health dangerous to life:

- penetrating injuries to the skull, including those without damage to the brain;

- open and closed fractures of the cranial vault and base, with the exception of isolated fissures limited to the outer plate of the cranial vault and fractures of the facial skeleton bones that are not part of the neurocranium, as well as fractures of parts of the ethmoid and sphenoid bones involved in the formation of the neurocranium;

- severe brain contusion, or moderate brain contusion where symptoms of damage to the brainstem are present;

- epidural, subdural, subarachnoid, intracerebral and intraventricular haemorrhages where life-threatening conditions are present;

- injuries penetrating the spinal canal, including those without damage to the spinal cord;

- fracture-dislocations or fractures of the vertebral bodies, or bilateral fractures of the arches of the cervical vertebrae, as well as unilateral fractures of the arches of the first and second cervical vertebrae, including those without impairment of spinal cord function;

- dislocations of the cervical vertebrae; subluxations of the cervical vertebrae accompanied by life-threatening conditions or impairment of spinal cord function;

- closed injuries to the spinal cord in the cervical region accompanied by life-threatening conditions and impairment of spinal cord function;

- fracture or fracture-dislocation of one or more thoracic or lumbar vertebrae with impairment of spinal cord function or the presence of clinically established severe shock and other life-threatening conditions;

- closed injuries to the thoracic, lumbar and sacral segments of the spinal cord accompanied by severe spinal shock or impaired pelvic organ function;

- injuries penetrating the lumen of the pharynx, oesophagus, larynx or trachea, as well as open injuries to the thyroid and thymus glands;

- fractures of the hyoid bone, open and closed fractures of the laryngeal and tracheal cartilages accompanied by life-threatening conditions; chest injuries penetrating the pleural cavity, pericardial cavity or mediastinal tissue, including those without damage to internal organs (subcutaneous emphysema cannot be regarded as a sign of a penetrating wound in the absence of haemopneumothorax);

- abdominal injuries penetrating the abdominal cavity (the peritoneal cavity and retroperitoneal space), including those without damage to internal organs;

- injuries penetrating the urinary bladder cavity, the upper and middle sections of the rectum, as well as extensive open injuries involving all layers of the lower section of the rectum;

- open and closed injuries (ruptures) of an internal organ of the thoracic or abdominal cavities, or the retroperitoneal space (kidneys, adrenal glands, pancreas), or the diaphragm, prostate gland, ureter or membranous part of the urethra;

- bilateral fractures of the posterior pelvic ring with rupture of the sacroiliac joint and disruption of the continuity of the pelvic ring, or double fractures of the pelvic ring in its anterior and posterior sections with disruption of its continuity;

- open fractures of the diaphyseal portions of long tubular bones (humerus, femur, tibia and both forearm bones).

An open fracture shall be understood as a fracture that communicates with the external environment, that is, a fracture in which the integrity of the surrounding soft tissues and skin is disrupted in the projection of the fracture, either as a result of direct impact by the traumatic object or as a result of damage to the soft tissues and skin from within by the ends of bone fragments;

- in cases of open fractures of the radius, ulna and fibula, closed fractures of the humerus, femur and tibia, as well as closed injuries to major joints (shoulder, elbow, wrist, hip, knee and ankle), the degree of harm to health shall be determined depending on the specific danger they pose to life, the duration of the health disorder or the criterion of permanent loss of working capacity;

- damage to a major blood vessel: the aorta, carotid (common, internal or external), subclavian, axillary, brachial, iliac, femoral or popliteal arteries, or the veins accompanying them, where the damage penetrates their lumen;

- damage to peripheral blood vessels (of the head, face, neck, forearm, hand, lower leg and foot) shall be classified depending on the specific danger to life caused by such damage (for example, massive blood loss, severe shock and other conditions);

- injuries resulting in life-threatening conditions: severe shock (Grade III or IV); coma of various aetiologies; massive blood loss causing collapse, acute cardiac or vascular insufficiency, collapse, severe impairment of cerebral circulation, acute renal or acute hepatic failure, severe acute respiratory failure, purulent-septic conditions, disorders of regional or organ circulation resulting in infarction of internal organs, gangrene of limbs, gas or fat embolism of the blood vessels of the brain, lungs and other organs, thromboembolism, or a combination of life-threatening conditions;

- thermal burns of the third or fourth degree affecting more than 15% of the body surface, third-degree burns affecting more than 20% of the body surface, second-degree burns affecting more than 30% of the body surface, as well as burns of a smaller area accompanied by life-threatening conditions (the consequences of burns must be assessed without taking plastic and reconstructive operations into account), and burns of the respiratory tract accompanied by oedema and narrowing of the glottis;

- chemical burns (caused by concentrated acids, caustic alkalis and other toxic substances) that, in addition to local effects, have caused a general toxic effect that threatens life;

- poisoning by chemical substances (poisons) or pathological conditions caused by biological agents that have resulted in life-threatening conditions;

- compression of the neck organs and other forms of mechanical asphyxia accompanied by pronounced signs of life-threatening phenomena (cerebral circulatory disorders, loss of consciousness, amnesia and others), provided that this is established by objective evidence;

- open injuries to the hip and knee joints; injuries caused by exposure to low temperatures (general hypothermia, frostbite) where life-threatening conditions are present.

Injuries that are not dangerous to life but constitute grievous bodily harm by virtue of their outcome and consequences include loss of sight, speech or hearing, loss of any organ or loss of its functions:

- loss of sight shall mean permanent complete blindness in both eyes or a reduction in visual acuity to 0.04 or lower (the ability to count fingers at a distance of two metres down to the perception of light), as well as loss of sight in the only functioning eye;

- loss of sight in one eye entails the loss of that organ's function and constitutes grievous bodily harm; the loss of one healthy (seeing) eyeball constitutes the loss of an organ and likewise constitutes grievous bodily harm;

- damage to a blind eye requiring its removal shall be assessed depending on the duration of the health disorder, with a mandatory indication that the injury is irreparable;

- loss of speech shall mean the loss of the ability to express one's thoughts in articulate sounds understandable to others, or the loss of the ability to speak as a result of loss of voice;

- loss of hearing shall mean complete deafness or an irreversible condition in which the victim cannot hear conversational speech at a distance of 3–5 cm from the auricle; loss of hearing in one ear is assessed as loss of the organ's function and constitutes grievous bodily harm;

- loss of any organ or loss of its functions shall mean: loss of an arm or leg (separation from the torso or loss of function due to paralysis or another condition that precludes their functioning; anatomical loss of an arm or leg shall mean separation from the torso of the entire arm or leg, as well as the hand or foot), loss of reproductive capacity, consisting in the loss of the ability to engage in sexual intercourse or the ability to fertilise, conceive, carry a pregnancy to term or give birth, and loss of one testicle, which is regarded as the loss of an organ;

- in cases of facial injuries, the expert determines their degree of severity and also establishes whether the injury is remediable or irreparable (remediability shall mean a significant reduction in, or the possibility of eliminating, visible consequences of the injury — the prominence of scars, deformities, impaired facial expressions and other effects — over time or through conservative (non-surgical) treatment; if surgical intervention (cosmetic or plastic surgery) is required to eliminate such consequences, the injuries to the face shall be considered irreparable; when establishing irreparability, the expert shall indicate in the report that if such consequences are recognised by the court or investigator as disfiguring the face, the injuries should be assessed as having resulted in grievous bodily harm);

- significant permanent loss of general working capacity exceeding one-third (more than 33%): the extent of significant permanent loss of general working capacity resulting from injuries shall be established after the outcome of the injury has been determined (according to the table of percentages of loss of working capacity resulting from various injuries);

- in children, loss of working capacity is determined on the basis of the general provisions; in persons with disabilities, significant permanent loss of general working capacity resulting from an injury is determined in the same manner as for practically healthy persons, regardless of their disability status and disability group;

- in cases of complete loss of professional working capacity, the degree of loss of professional working capacity is determined by medical and social expert commissions.

Professional working capacity is a person's ability to perform a certain volume and quality of work in a specific profession (pianist, surgeon, etc.). Complete loss is established in cases where, as a result of pronounced impairment of bodily functions, the existence of absolute medical contraindications to performing any type of professional activity, even under specially created conditions, is identified. Establishing that the perpetrator knew of this circumstance is not required for this type of harm to be attributed to them, since subparagraph 11) of Article 3 of the Criminal Code does not specify prior knowledge as a mandatory condition for criminal liability in cases of complete loss of professional working capacity. Nevertheless, it is considered that establishing this circumstance is necessary for the correct legal assessment of the act committed and the imposition of a fair sentence upon the perpetrator. As a general rule, the victim's profession is considered to be the type of activity that the victim was engaged in at the time the crime was committed and that constituted their principal occupation. However, where grievous bodily harm is inflicted upon a victim in connection with the performance of their official duties, the type of activity previously performed by the victim may also be recognised as their profession;

- termination of pregnancy, regardless of its duration, constitutes grievous bodily harm if it is not associated with the individual characteristics of the organism and is in a direct causal relationship with the injury. It is also important to establish that, when inflicting the injuries, the perpetrator was aware of the victim's pregnancy. Although Article 106 of the Criminal Code does not use the phrase “a woman known to be pregnant”, awareness may exist in any of the following forms: “the perpetrator did not rule out the possibility of such a condition”, “the perpetrator considered such a condition possible”, “the perpetrator considered it probable”, or “the perpetrator knew of the pregnancy”;

- the diagnosis of mental disorder (mental illness), drug addiction or toxicomania is established by psychiatric or narcological examination; however, their connection with the injury sustained, as well as the assessment of the severity of harm to health resulting from mental illness, drug addiction or toxicomania, is carried out by a commission of forensic medical experts, where necessary with the participation of specialists, psychiatrists, narcologists and toxicologists (mental disorder shall mean mental illness (psychiatric disease); reactive conditions associated with damage to the nervous system (psychoses, neuroses) are not included in the group of mental illnesses; an injury is classified as grievous bodily harm if it has resulted in the development of a mental illness, regardless of the duration of its course or the degree to which it can be treated).

In accordance with paragraph 384 of the Rules for the Organisation and Conduct of Forensic Examinations and Studies in Forensic Examination Bodies, approved by Order No. 484 of the Minister of Justice of the Republic of Kazakhstan dated 27 April 2017, a health disorder means a condition of the organism in which clinically pronounced pathological changes of a local and (or) general nature, caused by a specific injury or disease, are identified, where there is a violation of the anatomical integrity or physiological function of organs.

General working capacity shall mean the totality of a person's innate and acquired abilities to perform activities aimed at obtaining a socially significant result in the form of a particular product, item or service.

Professional working capacity shall mean a person's ability to work in their own profession or in another type of activity equivalent to it in terms of remuneration and qualifications.

Permanent loss of general working capacity is an irreversible loss of function (functions) that deprives a person of the ability to perform unskilled work fully or partially and to provide self-care.

If the final outcome has not been determined within 120 days, the amount of functional loss that has developed in the injured person after the expiry of that period shall be provisionally regarded as permanent (irreversible) loss of general working capacity.

By its legal structure, the corpus delicti is material. The crime is deemed completed from the moment grievous bodily harm is inflicted.

The subjective element of the crime is characterised by direct or indirect intent. The perpetrator realises that their socially dangerous actions cause grievous bodily harm to another person, foresees the possibility or inevitability of socially dangerous consequences and desires their occurrence (direct intent), or consciously allows them to occur or is indifferent to them (indirect intent).

Intent is most often indefinite (non-specific). In such cases, the perpetrator's actions are classified according to the consequences that actually occur. If the perpetrator's intent was directed at inflicting grievous bodily harm, but moderate bodily harm was inflicted as a result, the perpetrator's actions should be classified as an attempt to commit a serious crime (Part 3 of Article 24 and Part 1 of Article 106 of the Criminal Code).

The motives and purposes may vary widely (jealousy, revenge, envy, hooligan motives, etc.). Certain motives and purposes constitute grounds for classifying the infliction of grievous bodily harm as an aggravated form of the crime under consideration.

The subject is a sane natural person who has attained the age of 14.

The aggravated forms of the offence under consideration are set out in Part 2 of Article 106 of the Criminal Code. They include the infliction of grievous bodily harm committed: 1) against two or more persons; 2) against a person or their close relatives in connection with that person's performance of official duties or the fulfilment of professional or public obligations; 3) against a person who is known to the perpetrator to be in a helpless condition, as well as an act associated with the kidnapping of a person or the taking of a hostage; 4) with particular cruelty; 5) by a group of persons or a group of persons acting by prior conspiracy; 6) for mercenary motives, as well as for hire; 7) for hooligan motives; 8) on the grounds of social, national, racial or religious hatred or enmity; 9) for the purpose of using the victim's organs or tissues; 10) repeatedly; 11) against a person known to be a minor; and 12) in a state of emergency or during mass riots.

For a description of the qualifying elements of this crime, see the commentary on Part 2 of Article 99 of the Criminal Code, since, pursuant to the third paragraph of paragraph 31 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan “On the Qualification of Certain Criminal Offences Against Human Life and Health”, when qualifying the infliction of grievous bodily harm committed in the presence of the qualifying elements specified in Part 2 of Article 106 of the Criminal Code, it should be borne in mind that, in terms of their meaning, they correspond to the analogous elements specified in Part 2 of Article 99 of the Criminal Code.

Part 3 of Article 106 of the Criminal Code establishes liability for acts provided for in Parts 1 and 2 of this Article which have negligently resulted in the death of the victim or have been committed by a criminal group.

The crime provided for in Part 3 of Article 106 of the Criminal Code is characterised, on the subjective side, by intent (direct or indirect) with regard to the infliction of grievous bodily harm (the first consequence) and negligence (recklessness or carelessness) with regard to the second consequence — the fatal outcome. This means that causing death was not covered by the perpetrator's intent; however, the perpetrator foresaw the possibility of its occurrence but, without sufficient grounds, recklessly relied on being able to prevent it, or did not foresee the possibility of death, although, in the circumstances of the case, they ought to have and could have foreseen it. Only this interpretation of guilt makes it possible to distinguish the act committed from murder, in which the person desires or consciously allows the fatal outcome, and from causing death by negligence, in which there is always an absence of intent to inflict grievous bodily harm upon a person. If the perpetrator had no direct or indirect intent to inflict grievous bodily harm, and death occurred as a result of their violation of safety rules when handling objects, and, in the circumstances of the case, they ought to have and could have foreseen it, their actions shall be classified as causing death by negligence.

When inflicting grievous bodily harm, the perpetrator acts with intent to cause such harm and is aware of the socially dangerous nature of their actions, but their attitude towards the death of the victim is expressed in the form of negligence. For example, a knife blow to the arm resulting in damage to an artery and the victim's death from acute blood loss indicates intent to inflict grievous bodily harm rather than intent to commit murder.

Particular attention should be paid to the considerable period of time that may elapse between the intentional infliction of an injury and the occurrence of death. The passage of a long period of time does not, in itself, exclude the perpetrator's intent to deprive another person of life. Similarly, the fact that death occurs immediately after grievous bodily harm has been inflicted does not always indicate the presence of intent to commit murder. In the first case, the act may constitute murder (Part 1 of Article 99 of the Criminal Code), whereas in the second case it may constitute the offence provided for in Part 3 of Article 106 of the Criminal Code. In practice, difficulties arise in resolving this issue of legal classification. There is an erroneous view that a long period of time between the infliction of an injury and the occurrence of death excludes liability for murder.

This is due to the similarity between Part 3 of Article 106 of the Criminal Code and murder (in terms of consequences). These offences must be distinguished on the basis of their subjective elements. In murder (Article 99 of the Criminal Code), the perpetrator acts intentionally and also has an intentional attitude towards the consequences of their act in the form of causing the victim's death. In the case of the intentional infliction of grievous bodily harm upon a victim, however, the act itself is intentional, while the perpetrator's guilt in relation to the resulting consequence — the victim's death — is established in the form of negligence (recklessness or carelessness). In accordance with Article 22 of the Criminal Code, such a crime is recognised as having been committed intentionally.

Paragraph 30 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan “On the Qualification of Certain Criminal Offences Against Human Life and Health” emphasises:

“It is necessary to distinguish the unlawful intentional causing of a person's death from other intentional criminal offences involving the infliction of grievous bodily harm that has negligently resulted in death, and to determine the direction of the perpetrator's intent and their subjective attitude towards the results of their actions — the victim's death.

When determining the subjective element of a criminal offence and the form of guilt, it is necessary to proceed from the totality of all the circumstances of the criminal offence committed, taking into account, in particular, the nature of the relationship between the perpetrator and the victim, the method and instrument used to commit the criminal offence, the number, nature and location of wounds and other bodily injuries, the reason why the perpetrator ceased their unlawful actions, as well as their conduct before and after committing the criminal offence, and other relevant circumstances.

If it is established that the perpetrator acted with direct or indirect intent, was aware of the unlawfulness of their actions, foresaw the occurrence of the socially dangerous consequence in the form of a person's death and desired it (in the case of direct intent), or consciously allowed such an outcome of their actions and was indifferent to it (in the case of indirect intent), the act shall be classified under the relevant part of Article 99 of the Criminal Code (except for cases of causing death in circumstances provided for by Articles 100, 101, 102 and 103 of the Criminal Code).

If, however, it is established that, when committing an intentional criminal offence, the perpetrator was aware of the unlawfulness of their actions and foresaw the possibility of the victim's death, but their attitude towards such a consequence was characterised by negligence, the perpetrator's actions shall be classified under Part Three of Article 106 of the Criminal Code, which provides for liability for the intentional infliction of grievous bodily harm resulting in death by negligence.”

An analysis of judicial practice shows that these instructions of the highest judicial authority are not always taken into account.

M., P. and V. were found guilty of the intentional infliction of grievous bodily harm resulting in the victim's death by negligence, committed by a group of persons for hooligan motives (Part 3 of Article 106 of the Criminal Code). The conclusion of the court of first instance that M., P. and V., having foreseen the possibility of the victim's death but, without sufficient grounds, recklessly relying on being able to prevent it, inflicted grievous bodily harm upon the victim, which resulted in his death by negligence, does not correspond to the actual circumstances of the case. At the same time, the court of first instance did not specify the circumstances on which they had relied as capable of preventing the victim's death.

Under the meaning of the law (Part 2 of Article 21 of the Criminal Code), in cases of negligence, the perpetrator's expectation that the consequences will not occur must be based on real circumstances that provide grounds for anticipating such an outcome. No such circumstances existed in the present criminal case. When inflicting multiple blows to the head and to the areas where vital organs are located, M., P. and V. had no grounds for believing that O. would not die as a result of their actions. They foresaw the possibility of socially dangerous consequences resulting from their actions, namely the victim's death, and therefore intentionally caused the victim's death. More than 15 kicks were delivered to the victim's head, along with several blows to the heart area and abdomen. The infliction by the perpetrators of multiple blows to the victim's vital organs indicates that each of them had intent to deprive the victim of life rather than intent to inflict grievous bodily harm upon the victim. In these circumstances, the Supreme Court of the Republic of Kazakhstan reclassified the act from Part 3 of Article 106 of the Criminal Code to subparagraphs 7) and 9) of Part 2 of Article 99 of the Criminal Code.

In law enforcement practice, problems arise in distinguishing the intentional infliction of grievous bodily harm resulting in death (Part 3 of Article 106 of the Criminal Code) from causing death by negligence (Article 104 of the Criminal Code). The latter occurs where a person fails to foresee not only the possibility of causing death but also the possibility of inflicting grievous bodily harm, although they ought to have and could have foreseen the possibility of such consequences.

If the perpetrator had neither direct nor indirect intent to inflict grievous bodily harm upon the victim or to cause the victim's death, but, in the circumstances of the case, ought to have and could have foreseen the consequences that occurred (the victim's death), their actions shall be classified as causing death by negligence (Article 104 of the Criminal Code). For example, the perpetrator strikes the victim in the face with a fist, causing the victim to lose their balance and fall, and the victim dies from a head injury sustained in the fall.

The intentional infliction of harm to health (Articles 106 and 107 of the Criminal Code) must be distinguished from torture (Article 146 of the Criminal Code). Paragraph 16 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated 28 December 2009 “On the Application of the Provisions of Criminal and Criminal Procedure Legislation on Issues of Respect for Personal Liberty and the Inviolability of Human Dignity, and Combating Torture, Violence and Other Cruel or Degrading Treatment or Punishment” states:

“When distinguishing torture from the intentional infliction of harm to health (Articles 106 and 107 of the Criminal Code), it should be taken into account that the infliction of physical and mental suffering through the said acts cannot be classified as torture unless it is established that such acts were committed by an investigator, an officer conducting an inquiry, another official or another person for the purposes specified in Part One of Article 146 of the Criminal Code.

If, as a result of torture, minor, moderate or grievous bodily harm is intentionally inflicted upon the victim's health, or death occurs by negligence, such actions are fully covered by the relevant part of Article 146 of the Criminal Code and do not require additional classification under Articles 104, 106 or 107 of the Criminal Code.”

With regard to the intentional infliction of grievous bodily harm committed by a criminal group, see the commentary on subparagraph 15) of Part 2 of Article 99 of the Criminal Code.

The intentional infliction of grievous bodily harm may constitute an element of the objective side of another violent offence. In such cases, the classification of the act depends on the comparative degree of danger posed by the grievous bodily harm itself and the composite violent offence, taking into account the penalty provided for by the relevant criminal law provision. Thus, for example, the infliction of grievous bodily harm upon a victim during a robbery is fully covered by the elements of the offence provided for in subparagraph 5) of Part 2 of Article 192 of the Criminal Code and does not require additional classification under Part 1 of Article 106 of the Criminal Code. At the same time, the infliction of grievous bodily harm in the course of, for example, the intentional destruction of or damage to another person's property (Article 202 of the Criminal Code) requires additional classification under the relevant part of Article 106 of the Criminal Code, since the penalty under Article 106 of the Criminal Code is more severe than that under Article 202 of the Criminal Code.

The acts provided for in Parts 1, 2 and 3 of Article 106 of the Criminal Code are classified as serious crimes.

Commentary of 2021 on the Criminal Code of the Republic of Kazakhstan 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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