Commentary on Article 107. Intentional Infliction of Moderate Harm to Health of the Criminal Code of the Republic of Kazakhstan
- 1. Intentional infliction of moderate harm to health shall be punishable by a fine in an amount of up to one thousand monthly calculation indices, or correctional labour in the same amount, or community service for a period of up to six hundred hours, or restriction of liberty for a period of up to two years, or imprisonment for the same period.
- 2. The same act committed:
- 1) against two or more persons;
- 2) against a person or their close relatives in connection with the performance of that person's official duties or the fulfilment of their professional or public duty;
- 3) with particular cruelty, as well as against a person who is knowingly in a helpless condition for the perpetrator;
- 4) by a group of persons acting in prior collusion, or by a criminal group;
- 5) out of hooligan motives;
- 6) on the grounds of social, national, racial or religious hatred or enmity;
- 7) repeatedly;
- 8) against a person known to be a minor, —
- shall be punishable by a fine in an amount of up to two thousand monthly calculation indices, or correctional labour in the same amount, or community service for a period of up to eight hundred hours, or restriction of liberty for a period of up to three years, or imprisonment for the same period.
The public danger of the crime lies in causing harm to health resulting in a prolonged health disorder or a significant permanent loss of general working capacity.
The object of the crime is the health of citizens.
The objective aspect of the crime consists of:
socially dangerous acts (actions or omissions);
criminal consequences in the form of infliction of moderate harm to health;
a causal relationship between the criminal act and the consequences that have occurred.
According to subparagraph 12) of Article 3 of the Criminal Code, moderate harm to health means harm to human health that is not dangerous to life and has caused a prolonged health disorder (for a period exceeding twenty-one days) or a significant permanent loss of general working capacity (less than one-third).
The qualifying characteristics (criteria) of moderate harm to health, in accordance with the Rules for the Organisation and Conduct of Forensic Examinations and Studies in Forensic Examination Bodies, are:
prolonged health disorder — for a period exceeding 3 weeks (more than 21 days). Prolonged health disorders include consequences in the form of an illness or impairment of the function of any organ lasting more than three weeks (more than 21 days), directly related to the infliction of harm to health;
significant permanent loss of general working capacity (10–33 %, inclusive).
By its structure, the corpus delicti is material. The crime shall be considered completed from the moment moderate harm to health is inflicted.
The subjective aspect of the crime is characterised by intentional guilt in the form of direct or indirect intent. Most often, the intent in this case is indefinite (unspecified).
The motives and purposes of this criminal act vary. Some of them relate to the qualified infliction of moderate harm to health.
The subject of the crime provided for in Part 1 of Article 107 of the Criminal Code is a sane natural person who has reached the age of 16, whereas under Part 2 of Article 107 of the Criminal Code, the subject is a person who has reached the age of 14.
The qualified form of the crime under consideration (Part 2 of Article 107 of the Criminal Code) exists where it is committed:
against two or more persons, which means the infliction of moderate harm to health on two or more persons, committed simultaneously or over a short period of time and covered by a single criminal intent of the perpetrator;
against a person or their close relatives in connection with the performance of that person's official duties or the fulfilment of their professional or public duty.
This act is committed with the purpose of obstructing the victim's lawful activities in the performance of official duties or the fulfilment of professional or public duty, as well as out of revenge for such activities;
with particular cruelty, as well as against a person who is knowingly in a helpless condition for the perpetrator. Particular cruelty in the infliction of moderate harm to health should be understood as both the particular cruelty of the method used to inflict moderate harm (which also includes a method of committing the crime that is particularly painful for the victim) and the particular cruelty of the perpetrator's personality (their exceptional heartlessness, mercilessness, ferocity and ruthlessness), manifested in the act committed.
A helpless condition means that the victim is deprived of the opportunity to offer the offender effective resistance or to evade the encroachment. The perpetrator is aware of this and, while committing the crime, takes advantage of the victim's condition;
by a group of persons acting in prior collusion, or by a criminal group. A crime shall be recognised as having been committed by a group of persons acting in prior collusion if persons who had agreed in advance to commit the crime jointly participated in it.
A crime shall be recognised as having been committed by a criminal group if it was committed by an organised group, criminal organisation, criminal community, transnational organised group, transnational criminal organisation, transnational criminal community, terrorist group, extremist group, gang or illegal paramilitary formation;
An act provided for in the disposition of Article 107 of the Criminal Code shall be recognised as having been committed out of hooligan motives if it was committed on the grounds of manifest disrespect for society and generally accepted moral standards, where the perpetrator's behaviour constitutes an open challenge to public order and is driven by the desire to set themselves against others and demonstrate a contemptuous attitude towards them;
on the grounds of social, national, racial or religious hatred or enmity. For the application of this subparagraph, it is necessary to establish a specific intent based on one of the grounds specified in the law. The dominant motive in this case is the perpetrator's desire to inflict physical punishment in connection with their national, racial or religious affiliation and thereby humiliate the honour and dignity of a particular nation, race or religious denomination;
repeatedly. For the purposes of subparagraph 7) of Part 2 of Article 107 of the Criminal Code, repetition shall be understood as the commission, two or more times, of the acts specified in the disposition, in the absence of a single intent to commit these crimes, which are generally carried out at different times;
against a person known to be a minor. The guilty person must reliably know that the victim has not reached the age of 18.
The act provided for in Part 1 of Article 107 of the Criminal Code is classified as a minor crime.
The act provided for in Part 2 of Article 107 of the Criminal Code is classified as a crime of moderate gravity.
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 reforming 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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