Commentary on Article 15. Persons Subject to Criminal Liability under the Criminal Code of the Republic of Kazakhstan

A sane individual who has reached the age of sixteen by the time of committing a criminal offense shall be subject to criminal liability.

Persons who have reached the age of fourteen by the time of committing a crime shall be subject to criminal liability for murder (Article 99), intentional infliction of grievous bodily harm (Article 106), intentional infliction of bodily harm of medium severity under aggravating circumstances (Part Two of Article 107), rape (Article 120), violent acts of a sexual nature (Article 121), kidnapping (Article 125), an attack on persons or organizations enjoying international protection (Article 173), incitement of social, national, tribal, racial, class or religious discord (Article 174), encroachment on the life of the First President of the Republic of Kazakhstan — Elbasy (Article 177), encroachment on the life of the President of the Republic of Kazakhstan (Article 178), sabotage (Article 184), theft (Parts Two, Three and Four of Article 188), livestock theft (Parts Two, Three and Four of Article 188-1), robbery (Parts Two, Three and Four of Article 191), armed robbery (Article 192), extortion (Parts Two, Three and Four of Article 194), unlawful possession of an automobile or other vehicle without the purpose of theft under aggravating circumstances (Parts Two, Three and Four of Article 200), intentional destruction of or damage to another person's property under aggravating circumstances (Parts Two and Three of Article 202), an act of terrorism (Article 255), propaganda of terrorism or public calls to commit an act of terrorism (Article 256), creation of and leadership over a terrorist group and participation in its activities (Parts One and Two of Article 257), financing of terrorist or extremist activities and other forms of assistance to terrorism or extremism (Article 258), hostage-taking (Article 261), an attack on or seizure of buildings, structures, means of transport and communications (Article 269), knowingly false reporting of an act of terrorism (Article 273), theft or extortion of weapons, ammunition, explosives and explosive devices (Article 291), hooliganism under aggravating circumstances (Parts Two and Three of Article 293), theft or extortion of narcotic drugs, psychotropic substances or their analogues (Article 298), desecration of the bodies of deceased persons and burial places under aggravating circumstances (Part Two of Article 314), and intentional rendering of vehicles or communication routes unusable (Article 350).

If a minor has reached the age stipulated in Parts One or Two of this Article but, due to a delay in mental development not associated with a mental disorder, was unable, at the time of committing a criminal offense, to fully understand the actual nature and social danger of his or her actions (inaction) or to control them, such minor shall not be subject to criminal liability.

Persons who have committed criminal offenses are equal before the law regardless of their origin, social, official or property status, gender, race, nationality, language, attitude toward religion, beliefs, membership in public associations, place of residence or any other circumstances.

In Part 1 of the commented Article, the legislator establishes for the first time the mandatory legal characteristics of the subject of a criminal offense. The main characteristics of the subject of a criminal offense are: being a natural person, sanity, and having attained the age established by law.

In order to recognize a person who has committed a criminal offense as its subject, it is necessary to establish the presence of all three of the above characteristics. The absence of at least one of them indicates the absence of the elements of a criminal offense (since there is no subject of the criminal offense), and, consequently, there is no basis for bringing the person to criminal liability.

Article 15 of the Criminal Code identifies a natural person as one of the characteristics of the general subject of a criminal offense. This means that only a human being may be the subject of a criminal offense. The natural persons referred to in Part 1 of Article 15 of the Criminal Code include citizens of the Republic of Kazakhstan, stateless persons and foreign citizens. This follows from the provisions of Articles 7 and 8 of the Criminal Code.

Criminal law, considering a criminal offense as a social phenomenon, recognizes only a human being possessing reason and relative freedom of will as the subject of a criminal offense. This is consistent with the objectives of criminal legislation, its principles, the concept of a criminal offense and the purposes of punishment.

When committing various misconduct, including criminal offenses, people may join forces and make collective decisions. However, criminal liability is always strictly personal. Thus, if a dog released from its chain bites a person, the issue of civil or administrative liability may arise, not for the dog but for its owner. If, however, the owner deliberately releases the dog specifically to make it bite someone, the issue of the owner's criminal liability for intentional infliction of bodily harm arises. A dog cannot be recognized as the subject of a criminal offense.

Based on the provisions of the law, organizations, institutions, enterprises and other legal entities are not subjects of criminal offenses. In cases where occupational safety regulations are substantially violated at an enterprise, resulting in harm to a person's health, it is not the enterprise but the official responsible for compliance with those regulations who will be held liable (Article 156 of the Criminal Code, “Violation of Occupational Safety Regulations”).

However, the issue of introducing criminal liability for legal entities has repeatedly been raised in criminal law theory. The issue of the liability of legal entities remains unresolved in criminal legislation, and the academic debate on this problem in criminal law has not been removed from the agenda.

Under market economy conditions, with the establishment of private ownership and the increasing role of private property in material production, the likelihood of major environmental problems arising increases. The situation is further aggravated by the entry of foreign investors into our country, who are more interested in making profits than in constructing treatment facilities. This creates a paradoxical situation: foreign investors are subject to criminal liability of legal entities in their own countries, whereas no such liability exists in our country. Therefore, raising the issue of criminal liability of legal entities is entirely legitimate. However, this issue is not an easy one for our legislator, since introducing criminal liability for legal entities would require a revision of important and fundamental instruments of criminal law. Are we ready for such a turn of events? All the advantages and disadvantages of this issue must be examined, and a very balanced approach must be taken to resolving it.

In the interests of fairness, I would like to note that in my monographs published in 1994 and 1995, in my 1996 dissertation submitted for the degree of Doctor of Law, and in other publications, I substantiated the need to introduce criminal liability for legal entities for environmental, economic and corruption-related crimes.

Only sane persons may bear criminal liability for a socially dangerous act committed and thereby become subjects of a criminal offense. Persons who are legally insane cannot be subjects of criminal offenses and cannot be held criminally liable. Only compulsory medical measures, which do not constitute punishment for committing a socially dangerous act, may be applied to them.

Sanity is a mental state of a person in which, at the time of committing a criminal offense, the person is capable of understanding the nature of his or her conduct and controlling it. This means the ability to understand not only the factual aspect of one's actions but also their social significance, while consciously controlling one's actions, which is characteristic only of mentally healthy individuals with fully developed intellectual faculties. Human behavior is determined and controlled by consciousness and will. Consciousness and will are mental functions that determine human behavior.

They are always conditioned by objective reality, the material conditions of society's life and the social environment in which a person exists.

The ability to understand the factual aspect and social significance of one's actions and consciously control one's conduct distinguishes a sane person from an insane person. A criminal offense is committed under the influence of an entire range of external circumstances that play the role of causes and conditions of criminal behavior. However, none of them affects a person without passing through his or her consciousness. As a thinking being, a person with a normal psyche is capable of assessing the circumstances in which he or she acts and, taking them into account, choosing a course of conduct consistent with his or her objectives.

It must be taken into account that a person's sanity is determined at the moment of committing the act. This means that a forensic psychiatric examination must establish that, at the time of committing the criminal offense, the person, based on his or her mental health, level of socio-psychological development and socialization, understood the actual nature and social danger of the act and was able to control his or her actions (inaction).

The concept of sanity is closely related to the concept of guilt, which is of decisive importance for the criminal liability of the subject. Only a sane person may be recognized as guilty. Therefore, sanity is a prerequisite for guilt and liability.

The ability to understand one's actions and make a conscious decision serves as the basis for recognizing a person as guilty of committing an intentional or negligent criminal offense. This forms the basis of that person's obligation to answer to the state for his or her conduct. The inability to understand the nature of one's behavior or to control it means that the person is not guilty; such a person is recognized as legally insane and cannot be held criminally liable.

The third mandatory characteristic of the subject of a criminal offense is the attainment by the person of the age established by criminal law for being brought to criminal liability.

According to Part 1 of Article 15 of the Criminal Code, a person who has reached the age of sixteen by the time of committing a criminal offense shall be subject to criminal liability. The determination of the age at which a person may be held criminally liable is based on the level of consciousness of a minor and the person's ability to understand what is happening and act consciously accordingly. Therefore, young children who do not possess such an ability are not recognized as subjects of criminal offenses. The ability to understand the danger of one's behavior develops gradually as a result of upbringing and life experience. The danger of certain actions becomes obvious to an adolescent as parents, educators and other adults have taught them from childhood not to take things belonging to others, not to shoot with a slingshot, not to throw stones, sticks or other heavy objects at people, to be careful with fire, and so on. Useful advice and instructions help a child understand at an early age the danger of encroachments on another person's life and health, another person's property and public order. By a certain age, an adolescent has accumulated life experience and developed the ability to understand his or her actions and choose behavioral options more or less correctly.

Persons who commit crimes at the age of fourteen shall be subject to criminal liability only for the crimes specified in Part 2 of Article 15 of the Criminal Code. Among some legal scholars, there is an opinion that criminal liability from the age of fourteen is established by law for the most serious crimes, an opinion with which it is impossible to agree for several reasons. Indeed, a significant proportion of the crimes listed in Part 2 of Article 15 of the Criminal Code are grave and especially grave crimes. However, this was not what the legislator took into account when formulating the criminal law provision. First, if the severity of crimes had played the decisive role, then banditry (Article 268 of the Criminal Code), mass riots (Article 272 of the Criminal Code) and criminal offenses against the foundations of the constitutional order would have been listed first in Part 2 of Article 15 of the Criminal Code. However, liability for these acts begins at the age of sixteen. Second, attention should be drawn to the fact that some criminal offenses are not classified as grave at all: for example, theft under Part 2 of Article 188 of the Criminal Code.

The explanation for this choice lies in the fact that the law lists only those acts whose social danger can be fully understood by a person who has reached the age of fourteen. In the opinion of specialists, the danger and significance of these encroachments are obvious and accessible to an adolescent's understanding.

Establishing liability from the age of fourteen for committing a number of crimes does not constitute an expression of excessive strictness of criminal law, especially since the law, proceeding from the principle of humanism, provides for more lenient treatment of minors when bringing them to criminal liability and imposing punishment. Rather, it is обусловлено by the sufficiently early awareness of the most important foundations of society and the need for their enhanced protection.

However, determining the age from which criminal liability arises for committing a crime is a fairly complex problem, one that legislators in all countries have faced for a long time.

This problem continues to cause certain difficulties today. An analysis of foreign legislation shows that the age of criminal liability is determined and established differently by legislators in each particular country.

Relatively low age limits permitting criminal liability from the age of seven have been established in Egypt, Iraq, Lebanon, Yemen, Ireland and a number of other states. In Scotland, criminal liability is established from the age of eight; from the age of ten in England and Wales, Northern Ireland and most Australian states. In some states, the minimum age of criminal liability is established at thirteen: in a number of US states, France, Uzbekistan and others; at fourteen: in Bulgaria, the DPRK, Norway, Romania, the Federal Republic of Germany, Japan, most CIS countries and others. In Denmark, Finland, Sweden and other states, the age of criminal liability is set at fifteen. However, the legislation of the overwhelming majority of states provides for criminal liability for a person who has committed a crime from the age of sixteen.

Thus, age is established differently in foreign criminal law across states with different orientations and at different historical stages of their development.

Based on data from various studies, lawyers and psychologists tend to believe that the period from fourteen to sixteen years of age represents a particular physiological stage in the maturation of every person, and that by the age of fourteen a person is capable of reasoning and regulating his or her behavior.

Establishing the general age of criminal liability at sixteen does not mean that liability for every criminal offense not mentioned in Part 2 of Article 15 of the Criminal Code begins precisely at that age. The Criminal Code of the Republic of Kazakhstan also contains criminal offenses which, due to special characteristics of the subject or the particular features of the objective element, can only be committed by adults. Sometimes this is expressly stated in the provision of the Special Part of the Criminal Code. For example, under Article 132 of the Criminal Code, only a person who has reached the age of eighteen may be held liable for involving a minor in the commission of criminal offenses. Article 139 of the Criminal Code establishes liability for able-bodied adult children who fail for more than three months to fulfill their obligations, pursuant to a court decision, to pay maintenance for their disabled parent.

The subjects of certain criminal offenses (military criminal offenses, criminal offenses against the interests of public service and public administration, etc.) may only be persons who have reached the age of eighteen.

The issue of the influence of age on the legal classification of a crime may arise when a person between the ages of fourteen and sixteen commits a socially dangerous act for which criminal liability begins at the age of sixteen. For example, an encroachment on the life of an employee of a law enforcement or special state body, a military serviceman, a state inspector for the protection of wildlife, an inspector of a specialized wildlife protection organization, or a gamekeeper (Article 380-1 of the Criminal Code); an encroachment on the life of a state or public figure (Part 4 of Article 255 of the Criminal Code). Although criminal liability for these acts begins at the age of sixteen, they actually contain the elements of murder (Subparagraph 2) of Part 2 of Article 99 of the Criminal Code), for which criminal liability begins at the age of fourteen. Where a person aged between fourteen and sixteen encroaches on the life of any of the above-mentioned persons, his or her actions should be classified as murder of a person in connection with that person's performance of official duties or the fulfillment of a professional or public duty.

If a socially dangerous act committed by a person between the ages of fourteen and sixteen does not contain another corpus delicti for which liability may arise at an earlier age, such act is not subject to criminal law classification, as it does not contain all the elements of a crime.

The subject of a criminal offense is considered to be not only a person who has personally carried out socially dangerous actions (inaction), but also a person who has committed a criminal offense by using legally insane persons or persons who have not reached the age of criminal liability (for more details, see the commentary to Part 2 of Article 28 of the Criminal Code).

A special subject of a crime is understood to mean a person who, in addition to the necessary characteristics of a subject, must also possess specific additional characteristics that limit the possibility of being held criminally liable for committing the particular criminal offense. Only a person possessing the special characteristic may be the perpetrator of a crime with a special subject. A person who is not the subject of the crime specifically indicated in an article of the Special Part of the Criminal Code shall, in accordance with Part 5 of Article 28 of the Criminal Code, bear criminal liability for the criminal offense as an organizer, instigator or accomplice.

Complicity is impossible in a crime with a special subject where the special characteristic describing the subject is purely personal in nature and does not affect the nature and degree of social danger of the act itself. For example, in the case of a mother murdering her newborn child (Article 100 of the Criminal Code), the rule established in Part 5 of Article 29 of the Criminal Code cannot be applied to classify the actions of accomplices in the murder of a newborn child by its mother. The actions of the co-perpetrator and other accomplices in this crime must be classified, taking into account the role performed by each of them, under Part 3 of Article 99 of the Criminal Code as the murder of a minor.

It should be noted that the introduction of the concept of a special subject into criminal law is обусловлено by the specific nature of certain types of criminal offenses, the commission of which is possible only within the sphere of special relationships by persons duly incorporated into the system of such relationships. In a number of corpus delicti, a special subject is characterized not only by the presence of additional characteristics but also by specific conditions for recognizing a person as a special subject of a crime. Consequently, the mere fact that a person formally belongs to the sphere of special public relations does not in itself mean that a violation of special duties committed by that person must entail criminal liability.

Where a socially dangerous act is committed by a person who acquired the status of a special subject not of his or her own will, but because the duties of a special subject were unlawfully imposed on that person, such subject must be recognized as an improper subject of the crime, and the act committed by that person cannot be classified under an article providing for liability for an act committed by a special subject.

Where a socially dangerous act is committed by a person who voluntarily assumed the rights and duties characteristic of a special subject, that is, unlawfully appropriated the status of a special subject on his or her own initiative, such person shall be held liable as the perpetrator of a crime with a special subject. For example, where a person is appointed to a position in violation of the requirements or restrictions established by law or other regulatory legal acts for a candidate for that position (in the absence of a diploma of higher professional education or the required work experience), for the purpose of obtaining benefits and advantages for himself or herself or for other persons or organizations, or causing harm to other persons or organizations, if this results in substantial harm to the rights and legitimate interests of citizens or organizations or to the legally protected interests of society or the state, such actions should be classified as abuse of official powers (Article 361 of the Criminal Code).

In accordance with the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated April 11, 2002, “On Judicial Practice in Cases Involving Criminal Offenses Committed by Minors and Their Involvement in the Commission of Criminal Offenses and Other Antisocial Acts,” the establishment of the circumstances provided for in Articles 113 and 531 of the Criminal Procedure Code is of substantial importance for correctly resolving the issue of bringing a minor to criminal liability and imposing punishment. Article 113 of the Criminal Procedure Code concerns the circumstances subject to proof in a criminal case.

According to Part 1 of Article 113 of the Criminal Procedure Code, the following circumstances shall be subject to proof in a criminal case:

the event of the criminal offense and the elements of the corpus delicti provided for by criminal law (the time, place, method and other circumstances of its commission);

who committed the act prohibited by criminal law;

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

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

circumstances characterizing the personality of the suspect or accused;

the consequences of committing the criminal offense;

the nature and amount of harm caused by the criminal offense;

circumstances excluding the criminal unlawfulness of the act;

circumstances entailing exemption from criminal liability and punishment.

Article 531 of the Criminal Procedure Code is devoted to the circumstances that must be established in cases involving criminal offenses committed by minors. According to this Article, during pre-trial investigation and court proceedings, in addition to the circumstances subject to proof provided for in Article 113 of the Criminal Procedure Code, the following circumstances must be established in cases involving minors:

the age of the minor (date, month and year of birth);

the living and upbringing conditions of the minor;

the degree of intellectual, volitional and psychological development, personality and temperament characteristics, needs and interests;

the influence of adults and other minors on the minor.

It is also necessary to ascertain such individual personality traits of the minor as suggestibility, excitability, dependency, a tendency toward bravado, leadership, fantasizing and others. For these purposes, persons responsible for the minor's upbringing and other individuals should be questioned, official documents concerning the minor's health and intellectual development should be requested, and the personal documents belonging to the minor (diaries, notes, letters, audio recordings, etc.) should be examined.

In cases involving minors, the body conducting the criminal proceedings is obliged to take measures to establish the exact date of birth (day, month and year) of the person being brought to criminal liability. In this regard, a person is considered to have reached a certain age not on the birthday itself, but starting from the following day. Socially dangerous acts committed on the day of the person's sixteenth birthday (or fourteenth birthday) cannot be considered criminal offenses and cannot entail criminal liability.

According to the note to Article 300 of the Criminal Procedure Code, identity documents include:

passport of a citizen of the Republic of Kazakhstan;

identity card of a citizen of the Republic of Kazakhstan;

residence permit of a foreigner in the Republic of Kazakhstan;

stateless person's certificate;

diplomatic passport of the Republic of Kazakhstan;

official passport of the Republic of Kazakhstan;

refugee certificate;

seafarer's identity document;

foreign passport;

driver's license;

certificate of return;

birth certificate of a person who has not reached the age for obtaining an identity card;

birth registration record;

military ID.

In the absence of documents confirming age, or where there are doubts as to the authenticity of such documents, an expert examination must be ordered in accordance with Subparagraph 3) of Part 1 of Article 271 of the Criminal Procedure Code. In such cases, the date of birth shall be considered the last day of the year specified by the experts. Where experts determine a person's age within a minimum and maximum range (for example, from fourteen to fifteen years), the minimum age proposed by the examination must be used.

A minor aged between fourteen and eighteen who, due to a delay in mental development not associated with a mental disorder, was unable, at the time of committing a criminal offense, to fully understand the actual nature and social danger of his or her actions (inaction) or to control them shall not be subject to criminal liability (Part 3 of Article 15 of the Criminal Code). A delay in the psychophysiological development of a minor does not mean that the minor is legally insane, since in this case there is no mental disorder. At the time of committing a criminal offense, such a minor does not fully understand the actual nature and social danger of his or her actions (inaction), or does not fully control them, due to the specific characteristics of his or her mental development, manifested in social infantilism.

According to Paragraph 4 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan “On Judicial Practice in Cases Involving Criminal Offenses Committed by Minors and Their Involvement in the Commission of Criminal Offenses and Other Antisocial Acts”: “Where information exists providing grounds to presume that a minor has an intellectual disability, a comprehensive psychological and psychiatric examination must be appointed to determine the level of his or her mental development.

If, in this case, it is established that, due to a delay in psychological development not associated with a mental disorder, the minor was unable, at the time of committing the criminal offense, to fully understand the actual nature and social danger of his or her act or to control it, the minor shall not be subject to criminal liability in accordance with the provisions of Part 3 of Article 15 of the Criminal Code.”

At the same time, in Part 3 of Article 15 of the Criminal Code of the Republic of Kazakhstan of 2014, unlike Part 3 of Article 15 of the Criminal Code of the Republic of Kazakhstan of 1997, the legislator does not limit the non-prosecution of such a minor to the commission of only two categories of criminal offenses: crimes of minor or medium severity. Part 3 of Article 15 of the Criminal Code of the Republic of Kazakhstan of 2014 applies to all categories of crimes, which should be considered justified. In my earlier academic research, I repeatedly raised the issue of the need to extend the application of Part 3 of Article 15 of the Criminal Code to all categories of crimes.

In Part 4 of Article 15, the legislator enshrined the constitutional provision on equality of all persons before the law for the purpose of implementing general legal principles in practice: persons who have committed criminal offenses are equal before the law regardless of their origin, social, official or property status, gender, race, nationality, language, attitude toward religion, beliefs, membership in public associations, place of residence or any other circumstances.

Commentary dated 2021 on the Criminal Code of the Republic of Kazakhstan by Isidor Shamilovich Borchashvili, Honored 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, Honored Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.

Constitution Law Code Regulatory Decree Order Decision Resolution Lawyer Almaty Lawyer Legal services Legal Consultation Civil Criminal Administrative cases and disputes Defense Arbitration Legal Company of Kazakhstan Law Office Court Cases Declaration Decree Order Resolution Decision Report Conclusion Application Conclusion Convention Contract Memorandum Methodology Norms Note Rules Program Charter Statute Charter Article Commentary Resolution Regulation Protocol Draft Program Rules Messages