Commentary on Article 113. Circumstances Subject to Proof in a Criminal Case under the Criminal Procedure Code of the Republic of Kazakhstan

1. The following shall be subject to proof in a criminal case:

1) the event and the elements of the criminal offence prescribed by criminal law (the time, place, method and other circumstances of its commission);

2) who committed the act prohibited by criminal law;

3) the guilt of the person in committing the act prohibited by criminal law, the form of their guilt, the motives for the act committed, legal and factual errors;

4) circumstances affecting the degree and nature of the liability of the suspect or accused;

5) circumstances characterizing the personality of the suspect or accused;

6) the consequences of the criminal offence committed;

7) the nature and amount of damage caused by the criminal offence;

8) circumstances excluding the criminal unlawfulness of the act;

9) circumstances entailing exemption from criminal liability and punishment.

2. Additional circumstances subject to proof in cases involving criminal offences committed by minors are specified in Article 531 of this Code, and in cases involving socially dangerous acts committed by persons who are legally insane, in Article 510 of this Code.

3. Along with other circumstances, a criminal case shall establish circumstances confirming that property subject to confiscation in accordance with Article 48 of the Criminal Code of the Republic of Kazakhstan was obtained unlawfully, including as a result of the commission of a criminal offence, or constitutes income derived from such property, or was used or intended to be used as an instrument or means of committing a criminal offence, or for financing or otherwise supporting extremist or terrorist activities or a criminal group.

4. A criminal case shall also identify the circumstances that contributed to the commission of the criminal offence.

Note. Article 113 was amended by Law of the Republic of Kazakhstan No. 292-VI dated 27 December 2019 (see Article 2 for the procedure for its entry into force).

The provisions of Article 113 of the CPC, on the one hand, constitute an expanded statement of the aggregate of the subjective and objective elements of the composition of a criminal offence, which is the sole basis for criminal liability (Article 4 of the Criminal Code). On the other hand, these provisions create and formulate, in a concentrated form, a programme of criminal procedural activities for the inquiry officer, investigator, prosecutor, judge and court in a criminal case, that is, they specifically indicate what the activities of these officials must be directed towards when conducting proceedings in the case.

The results of implementing this programme form the basis for many procedural decisions of the body conducting the criminal proceedings: the resolution on the classification of the suspect's act, the resolution on termination of the criminal case, the indictment, the protocol on a criminal misdemeanour, the resolution on the application of summary proceedings, the resolution on committing the accused for trial, the judgment or the court ruling in the case. Thus, what meaning does the law attach to the specific circumstances listed in Parts 1–4 of Article 113 of the CPC, which must be established in every criminal case?

The provision of subparagraph 1) of Part 1 of Article 113 of the CPC concerns proving the existence of an event and, where its existence has been established, the composition of the criminal offence associated with it. Article 390 of the CPC regulates this matter with sufficient clarity when the court, following the results of the trial, retires to the deliberation room to render a judgment. Among the key questions resolved by the court in the deliberation room when rendering a judgment, the law identifies the following as a matter of priority: has it been proven that the act (event) of which the defendant is accused actually took place; does the act (event) constitute a criminal offence, and under which criminal law is it prescribed (article, part, paragraph); has it been proven that the defendant committed this act; is the defendant guilty of committing this criminal offence, and so forth. The concepts of an event and the composition of a criminal offence are set out in the commentary to the provisions of subparagraphs 1) and 2) of Part 1 of Article 35 of the CPC.

The provision of subparagraph 2) of Part 1 of Article 113 of the CPC requires proof of the status of the subject of the criminal offence: a person of sound mind, a legally insane person, a minor, a woman, a special subject of a criminal offence, a person with diminished mental capacity, or a vulnerable person.

The provision of subparagraph 3) of Part 1 of Article 113 of the CPC relates to proving the subjective element of the criminal offence and includes establishing: the direction of intent (whether the criminal offence was committed intentionally or negligently, whether both forms of guilt are present, or whether harm was caused without guilt); the fundamental, motivating reason for the criminal offence (motive); legal error (an incorrect assessment of the lawfulness or unlawfulness of the act); factual error (a person's mistaken understanding of the aggregate of objective elements of the composition of the criminal offence).

The provisions of subparagraph 4) of Part 1 of Article 113 of the CPC concern proving circumstances that mitigate or aggravate the criminal liability of the subject of the criminal offence, as listed in Articles 53 and 54 of the Criminal Code.

Circumstances mitigating criminal liability and punishment (Part 1 of Article 53 of the Criminal Code) include: 1) the commission, for the first time, of a criminal misdemeanour or, for the first time, of a crime of minor or medium gravity as a result of a fortuitous combination of circumstances; 2) the minority of the offender; 3) pregnancy; 4) the offender having young children; 5) providing medical or other assistance to the victim immediately after the commission of the criminal offence, irrespective of the consequences of such assistance; 6) voluntary compensation for property damage caused as a result of the criminal offence, and making amends for moral and other harm caused by the criminal offence; 7) the commission of a criminal offence as a result of difficult personal, family or other circumstances, or out of compassion; 8) the commission of a criminal offence as a result of physical or mental coercion, or due to material, official or other dependence; 9) the commission of a criminal offence in violation of the conditions of lawfulness of necessary defence, extreme necessity, apprehension of a person who has committed an offence, justified risk, execution of an order or instruction, or the conduct of operational-search, counter-intelligence measures or covert investigative actions; 10) unlawful or immoral conduct of the victim that served as the reason for the criminal offence; 11) sincere remorse, voluntary surrender, active assistance in the detection of the criminal offence, the exposure of other accomplices to the criminal offence and the search for property obtained as a result of the criminal offence.

When imposing punishment, circumstances not provided for in Part 1 of Article 53 of the Criminal Code may also be taken into account as mitigating circumstances, meaning that their list is not exhaustive (Part 2 of Article 53 of the Criminal Code). The law makes one more stipulation. If a mitigating circumstance is provided for in the relevant article of the Special Part of the Criminal Code as an element of a criminal offence, it may not, in itself, be taken into account again when imposing punishment (Part 3 of Article 53 of the Criminal Code).

Circumstances aggravating criminal liability and punishment include (Part 1 of Article 54 of the Criminal Code): 1) repeated criminal offences, recidivism of crimes, and dangerous recidivism of crimes; 2) the causing of grave consequences by the criminal offence; 3) the commission of a criminal offence by a group of persons, a group of persons acting upon prior conspiracy, or a criminal group; 4) an especially active role in the commission of the criminal offence; 5) involving in the commission of a criminal offence persons who, as is known to the offender, suffer from a serious mental disorder, or persons who have not attained the age at which criminal liability arises; 6) the commission of a criminal offence motivated by national, racial or religious hatred or enmity, out of revenge for the lawful actions of other persons, or for the purpose of concealing another criminal offence or facilitating its commission; 7) the commission of a criminal offence against a woman who is known to the offender to be pregnant, as well as against a minor, another defenceless or helpless person, or a person dependent on the offender; 8) the commission of a criminal offence against a person or their close relatives in connection with that person's performance of their official, professional or public duty; 9) the commission of a criminal offence with particular cruelty, sadism, humiliation, or causing suffering to the victim; 10) the commission of a criminal offence using weapons, ammunition, explosives, explosive or imitation devices, specially manufactured technical equipment, flammable and combustible liquids, poisonous and radioactive substances, medicinal and other chemical-pharmacological preparations, as well as through the use of physical or mental coercion or by a generally dangerous method; 11) the commission of a criminal offence under a state of emergency, an emergency situation, or during mass riots; 12) the commission of a criminal offence while under the influence of alcohol, narcotic substances or toxic substances. Depending on the nature of the criminal offence, the court has the right not to recognize this circumstance as aggravating; 13) the commission of a criminal offence by a person who thereby violated an oath or professional pledge taken by them; 14) the commission of a criminal offence by abusing the trust placed in the offender by virtue of their official position or a contract; 15) the commission of a criminal offence using the uniform or documents of a representative of authority; 16) the commission of a criminal offence by an employee of a law enforcement or special state body, or by a judge, through the use of their official position.

Furthermore, if a circumstance specified in Part 1 of Article 54 of the Criminal Code is provided for in the relevant article of the Special Part of the Criminal Code as an element of a criminal offence, it may not be taken into account again as a circumstance aggravating liability and punishment (Part 2 of Article 54 of the Criminal Code).

When imposing punishment, the court may not recognize as aggravating circumstances those not specified in Article 54 of the Criminal Code, meaning that, unlike the list of mitigating circumstances, their list is exhaustive (Part 3 of Article 54 of the Criminal Code).

The provisions of subparagraph 5) of Part 1 of Article 113 of the CPC are proved in the course of investigative and judicial actions, through obtaining a set of independent character references concerning the suspect or accused, and also follow from the establishment of circumstances affecting the degree and nature of the accused's liability (subparagraph 4) of Part 1 of Article 113 of the CPC).

The consequences of the criminal offence committed (subparagraph 6) of Part 1 of Article 113 of the CPC) are specified in the articles of the Special Part of the Criminal Code, and proving them is of substantial importance for the correct classification of the criminal offence committed and for determining the degree of public danger posed by the criminal offence and its perpetrator.

The existence of harm is the sole basis for the emergence of the status of a victim in a case. Its nature and amount are primarily reflected in the statement of claim submitted by the victim of the criminal offence (Part 1 of Article 71 and Part 1 of Article 166 of the CPC). In this regard, the CPC distinguishes between property, physical and moral harm (Part 1 of Article 71 and Part 1 of Article 166 of the CPC). Their amounts in monetary terms are established through various methods (audit results, a forensic accounting or forensic economic examination, an expert's opinion, a specialist's opinion, etc.). In accordance with Articles 951–952 of the Civil Code, moral harm is compensated to the victim (a natural person) only in monetary form, and the amount of compensation is determined by the court taking into account the principles of fairness and sufficiency. At the same time, the amount of compensation for moral harm should be considered reasonable and fair if, in determining it, the circumstances associated with the violation of the citizen's personal non-property rights have been taken into account. The amount of compensation for moral harm awarded by a court of first instance may be reviewed by higher judicial instances if it does not comply with the above requirements (paragraph 7 of Regulatory Resolution No. 7 of the Supreme Court of the Republic of Kazakhstan dated 27 November 2015, “On the Application by Courts of Legislation on Compensation for Moral Harm”).

The provision of subparagraph 8) of Part 1 of Article 113 of the CPC concerns proving circumstances that exclude the criminal liability of the person who committed the act (the person is considered innocent because the composition of a criminal offence is absent). These circumstances are provided for in the Criminal Code and include: necessary defence (Article 32), causing harm during the apprehension of a person who has committed an encroachment (Article 33), extreme necessity (Article 34), conducting operational-search, counter-intelligence measures or covert investigative actions (Article 35), justified risk (Article 36), physical or mental coercion (Article 37), and execution of an order or instruction (Article 38).

Proof of circumstances entailing exemption from criminal liability and punishment (subparagraph 9) of Part 1 of Article 113 of the CPC), which preserves the person's guilt in committing the criminal offence, must be carried out in strict accordance with the provisions of the articles of the General Part of the Criminal Code that provide for various grounds for such exemption (active repentance, exceeding the limits of necessary defence, fulfilment of the conditions of a procedural agreement, reconciliation with the victim, establishment of personal surety, change of circumstances, expiration of the limitation period, adoption of an amnesty or pardon act) (see also the commentary to the provisions of Articles 35 and 36 of the CPC).

Along with the circumstances indicated above, additional circumstances must be established in cases involving socially dangerous acts committed by persons who are legally insane, as well as in cases involving minor suspects and accused persons charged with committing criminal offences (Part 2 of Article 113 of the CPC). These circumstances are specified in Articles 510 and 531 of the CPC.

Here, we shall limit ourselves to noting the existence in the CPC of stringent requirements governing proceedings in cases involving minors: only a preliminary investigation is conducted in such cases, regardless of the category of the criminal offence committed by the minor (Part 3 of Article 189 of the CPC); failure to attain the age of criminal liability established by Article 15 of the Criminal Code constitutes a specific case for termination of a criminal case on the grounds provided for in subparagraph 2) of Part 1 of Article 35 of the CPC (Part 5 of Article 35 of the CPC).

Similarly, conducting a preliminary investigation is mandatory in cases involving persons who have committed acts prohibited by criminal law while in a state of legal insanity (suffering from mental illnesses), where proceedings in the case are necessary for the application of compulsory medical measures against such persons (Part 1 of Article 510 of the CPC). The commission of an act prohibited by criminal law while in a state of legal insanity constitutes an independent ground for terminating proceedings in the case (subparagraph 9) of Part 1 of Article 35 of the CPC).

Attaching importance to preventing the use of criminally acquired property in the commission of new criminal offences, returning such property to persons who have suffered from criminal offences, and ensuring the confiscation of property in the interests of the state, Part 3 of Article 113 of the CPC establishes, as a separate circumstance, the need to identify property obtained unlawfully, including as a result of the commission of a criminal offence, and so forth.

This subject and the procedures for such proof are also provided for in greater detail in Section 15, Chapter 71 of the CPC, entitled “Proceedings on Confiscation before the Rendering of a Judgment” (Articles 667–672).

It should be borne in mind that the relevant structures of the Ministry of Finance, including the Financial Monitoring Committee, the State Revenue Committee, and others, as well as the Accounts Committee for Control over Execution of the Republican Budget, have significant capabilities to assist in carrying out the aforementioned work during pre-trial investigation.

An important part of criminal procedural proof is establishing the circumstances (the motive and the conditions for its implementation) that contributed to the commission of a criminal offence. Preventive work must be carried out in every criminal case, regardless of the age and mental characteristics of the person who committed the criminal offence, since the causes of a criminal offence and the conditions that contributed to its commission fall within the scope of circumstances that must be established for the proper resolution of any criminal case (the provisions of Parts 2–3 of Article 113 of the CPC). The results of preventive work must be reflected in the resolution on termination of the criminal case, the indictment, the protocol on a criminal misdemeanour, the resolution on the application of summary proceedings, and the court judgment. The submission of the criminal prosecution body on this matter and the court's separate ruling must, in all cases where they are issued, be attached to the materials of the criminal case. This is necessary to prevent duplication of this work as the criminal case progresses through other stages of the criminal proceedings. Preventive work is objectively necessary in terminated criminal cases, particularly during the pre-trial investigation, since such cases will not be examined by anyone other than the inquiry officer, investigator or prosecutor and will not become the subject of judicial proceedings.

Commentary of 2020 on the Criminal Procedure Code of the Republic of Kazakhstan. By Marat Chekishbayevich Kogamov, Doctor of Law, Honorary Lawyer of Kazakhstan, Professor, Academician of the Kazakhstan National Academy of Natural Sciences, Honoured Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.

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