Commentary on Article 112. Causing Grievous Bodily Harm in Excess of the Limits of Necessary Self-Defence of the Criminal Code of the Republic of Kazakhstan
1. Intentional infliction of grievous bodily harm committed in excess of the limits of necessary self-defence —
shall be punishable by a fine in an amount of up to one thousand monthly calculation indices, or corrective labour in the same amount, or community service for a period of up to four hundred hours, or restriction of liberty for a period of up to one year, or imprisonment for the same period.
2. The same act resulting in the death of the victim through negligence —
shall be punishable by restriction of liberty for a period of up to two years or imprisonment for the same period.
The public danger of the crime under consideration is expressed in the fact that, as a result of its commission, grievous bodily harm is inflicted without necessity, or it results in death through negligence.
The object of the crime is human health.
The objective side of the crime is characterised by the commission of actions that cause grievous bodily harm in excess of the limits of necessary self-defence, and by the causal relationship between the actions and the consequences that have occurred. The characteristics of grievous bodily harm are examined in the analysis of Article 106 of the Criminal Code. Defensive responsive actions must be committed at the moment of a socially dangerous encroachment by the victim (except in cases involving an actual threat of attack and after the encroachment has ended, where the person defending himself or herself was unaware of the moment when the attack ceased).
Intentional infliction of grievous bodily harm in excess of the limits of necessary self-defence is recognised as an obvious disproportion between the defence and the nature and degree of public danger posed by the encroachment, as a result of which the person committing the encroachment is caused harm that is clearly excessive and not necessitated by the circumstances. The infliction of grievous bodily harm within the limits of necessary self-defence is recognised as lawful. For the conditions governing the lawfulness of an act of necessary self-defence and exceeding its limits, see the commentary to Article 32 of the Criminal Code.
The negligent infliction of grievous or moderately serious bodily harm in excess of the limits of necessary self-defence excludes criminal liability.
By its legal structure, the elements of the crime are material. The act shall be considered completed from the moment grievous bodily harm is caused to the victim.
The subjective side is characterised by guilt in the form of direct or indirect intent. A crime is recognised as having been committed with direct intent if the person was aware of the public danger of his or her actions (inaction), foresaw the possibility or inevitability of socially dangerous consequences, and desired their occurrence. A crime is recognised as having been committed with indirect intent if the person was aware of the public danger of his or her actions (inaction), foresaw the possibility of socially dangerous consequences, did not desire but consciously accepted their occurrence or was indifferent to them. The motive is the desire to protect legally protected interests. The purpose is protection against a socially dangerous encroachment.
The subject of the crime is a physically competent and sane individual who has attained the age of 16.
Part 2 of Article 112 of the Criminal Code provides for liability for the same act resulting in the death of the victim through negligence. This means that the causing of death was not covered by the intent of the perpetrator; however, he or she foresaw the possibility of its occurrence but, without sufficient grounds, recklessly assumed that it could be prevented, or did not foresee it, although, under the circumstances of the case, he or she should and could have foreseen the possibility of death occurring.
If the negligent causing of death is not related to exceeding the limits of necessary self-defence, the actions of the perpetrator should be classified under Article 104 of the Criminal Code as negligent causing of death.
It should be noted that the infliction of grievous bodily harm committed in excess of the limits of necessary self-defence, as provided for in Part 1 of Article 112 of the Criminal Code, belongs to minor crimes, whereas the infliction of harm in a state of passion (Article 111 of the Criminal Code) constitutes a criminal misdemeanour. At the same time, murder committed in a state of passion (Part 1 of Article 101 of the Criminal Code) belongs to crimes of medium gravity, whereas murder committed in excess of the limits of necessary self-defence (Article 102 of the Criminal Code) belongs to minor crimes. Considering that the crimes provided for in Articles 102 and 112 of the Criminal Code are more privileged in relation to the criminal offences provided for in Articles 101 and 111 of the Criminal Code, respectively, the sanctions of Articles 111 and 112 of the Criminal Code should be brought into conformity.
The acts provided for in Parts 1 and 2 of Article 112 of the Criminal Code belong to minor 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 the 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.*
Constitution Law Code Regulatory Decree Order Decision Resolution Lawyer Almaty Lawyer Legal service Legal Consultation Civil Criminal Administrative cases and disputes Defence Arbitration Legal Company of Kazakhstan Law Office Court Cases Declaration Decree Order Resolution Decision Report Conclusion Application Conclusion Convention Contract Memorandum Methodology Rules Note Regulations Programme Charter Charter Article Commentary Resolution Regulations Protocol Draft Programme Rules Addresses
