Commentary on Article 2. Objectives of the Criminal Code of the Republic of Kazakhstan

The objectives of this Code are: the protection of the rights, freedoms and legitimate interests of individuals and citizens, property, the rights and legitimate interests of organizations, public order and security, the environment, the constitutional system and territorial integrity of the Republic of Kazakhstan, and the interests of society and the State protected by law against socially dangerous encroachments; the protection of peace and the security of humanity; as well as the prevention of criminal offenses.

For the purpose of fulfilling these objectives, this Code establishes the grounds for criminal liability, determines which acts dangerous to the individual, society or the State constitute criminal offenses, namely crimes or criminal infractions, and establishes penalties and other measures of criminal-law influence for their commission.

The normative consolidation of the objectives of criminal law is an achievement of the science of criminal law and law enforcement practice. This enables law enforcement authorities and citizens to understand the purpose of criminal legislation, contributes to the preservation of its original concept and stabilizes the criminal policy of the State.

The article under commentary sets out the principal objectives of criminal legislation. They may be conventionally divided into protective and preventive objectives.

The protective objective of the Criminal Code of the Republic of Kazakhstan is formulated according to the order of priority of criminal-law protection and serves as the basis for the structure and arrangement of the chapters of the Special Part of the Criminal Code.

In connection with the recognition of the priority of universal human values in the Criminal Code of the Republic of Kazakhstan, the most important objects of criminal-law protection are the rights, freedoms and legitimate interests of individuals and citizens.

In criminal-law literature, different assessments have been expressed regarding the order in which the objects of protection are listed in Part 1 of Article 2 of the Criminal Code and, consequently, in the structure of the Special Part of the Criminal Code of the Republic of Kazakhstan.

The hierarchy of objects of criminal-law protection established in the Criminal Code corresponds to the international requirements concerning the priority protection of individual rights and freedoms, set out in the 1948 Universal Declaration of Human Rights, as well as to the constitutional provision recognizing the human being, their life, rights and freedoms as the highest value (Article 1 of the Constitution of the Republic of Kazakhstan). Thus, arguments in favour of the priority protection of the individual are enshrined in the Preamble to the Universal Declaration of Human Rights: “Recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.”

In light of the foregoing, there are no grounds for changing the order in which the objects of protection are set out in Part 1 of Article 2 of the Criminal Code. At the same time, it should be noted that changing the priorities among the objects of criminal-law protection at the level of defining the objectives of criminal legislation is not, in itself, sufficient. It is important that this change be reflected not only in the arrangement of the relevant chapters of the Special Part, but also in the actual content of criminal-law provisions.

According to the Constitution of the Republic of Kazakhstan, human rights and freedoms belong to everyone from birth, are recognized as absolute and inalienable, and determine the content and application of laws and other regulatory legal acts (Paragraph 2 of Article 12 of the Constitution).

The content of the fundamental rights and freedoms of individuals and citizens is set out in Articles 13–33 of the Constitution of the Republic of Kazakhstan. These include: the right to life, liberty and personal security; inviolability of private life and personal and family privacy, and protection of one's honour and dignity; confidentiality of correspondence, telephone conversations, postal, telegraphic and other communications; inviolability of the home; freedom of movement and the choice of place of stay and residence; freedom of conscience and religion; freedom of speech, and the right to receive, transmit, produce and disseminate information by any lawful means; the right to hold assemblies, rallies and demonstrations, marches and pickets; the exercise of electoral rights and participation in referendums. The exercise of these rights must not infringe upon the rights and freedoms of other persons, encroach upon the constitutional order or violate public morality (Paragraph 5 of Article 12 of the Constitution).

Subparagraph 8) of Article 1 of the Law of the Republic of Kazakhstan dated January 6, 2012, “On National Security of the Republic of Kazakhstan,” identifies among the objects of national security the individual, their life, rights and freedoms; society, its material and spiritual values; and the State, its constitutional system. The role of criminal law in protecting the rights, freedoms and legitimate interests of individuals and citizens consists in establishing legal prohibitions against their violation and determining the corresponding penalties.

The next objective enshrined in the Criminal Code of the Republic of Kazakhstan is the protection of property rights. According to Paragraph 1 of Article 6 of the Constitution, state and private property are recognized and equally protected in the Republic of Kazakhstan. Property imposes obligations: its use must also serve the public good. The subjects and objects of property, the scope and limits of the exercise of property rights, and the guarantees of their protection are determined by law (Paragraph 2 of Article 6 of the Constitution).

Paragraph 2 of Article 191 of the Civil Code states: “Any property may be privately owned, with the exception of certain types of property which, in accordance with legislative acts, may not belong to individuals or legal entities.”

Criminal legislation also makes no distinction in the protection of these types of property and provides, in Chapter 6 of the Criminal Code, for liability for criminal offenses against property.

The protection of the rights and legitimate interests of organizations constitutes an independent object of criminal-law protection. The activities of existing and newly established organizations in the Republic of Kazakhstan are aimed at satisfying various needs of society as a whole and of each individual. Criminal legislation, in turn, protects the rights and legitimate interests of organizations and thereby performs a regulatory function, contributing to the fulfilment of society's needs and the development of the State.

One of the important objectives of criminal legislation is the protection of public security and public order. According to Subparagraph 1) of Article 4 of the Law of the Republic of Kazakhstan “On National Security of the Republic of Kazakhstan,” public security is understood as a state of protection of the life, health and well-being of citizens, the spiritual and moral values of Kazakhstani society and the social security system against real and potential threats, under which the integrity and stability of society are ensured.

Public order, as an object of criminal-law protection, is a set of social relations that ensure public tranquillity, compliance with public morality (including law-abiding and proper conduct of citizens in public places), and the uninterrupted operation of transport, enterprises, institutions and organizations. In the Criminal Code of the Republic of Kazakhstan, this objective is addressed through the introduction of Chapter 10, “Criminal Offenses Against Public Security and Public Order.”

The next object of criminal-law protection is the environment. In accordance with Article 31 of the Constitution of the Republic of Kazakhstan, the State aims to protect the environment that is favourable for human life and health. According to Article 38 of the Constitution, citizens of the Republic of Kazakhstan are obliged to preserve nature and treat natural resources with care.

At the present stage of social development, industry is growing rapidly and natural resources are being extensively used for technological purposes to sustain human life. This often leads to the disruption of ecological balance and creates an unfavourable environment in places where people live and stay. Criminal law is intended to ensure a safer regime for the use of natural resources by establishing certain restrictions and prohibitions in this area.

In accordance with Subparagraph 6) of Article 4 of the Law of the Republic of Kazakhstan “On National Security of the Republic of Kazakhstan,” environmental security is a state of protection of the vital interests and rights of individuals and citizens, society and the State against threats arising from anthropogenic and natural impacts on the environment.

The environment is the aggregate of natural and artificial objects, including atmospheric air, the Earth's ozone layer, surface and underground waters, land, subsoil, the animal and plant kingdoms, as well as climate, in their interaction.

A favourable environment is an environment whose condition ensures environmental security and the protection of public health, the preservation of biodiversity, the prevention of pollution, the sustainable functioning of ecological systems, and the reproduction and rational use of natural resources.

Environmental protection is a system of state and public measures aimed at preserving and restoring the environment, preventing the negative impact of economic and other activities on the environment, and eliminating the consequences thereof.

The legal instruments protecting this constitutional right also include the provisions of the Criminal Code contained in Chapter 13, which establish liability for environmental criminal offenses.

The concepts of the constitutional system and territorial integrity, as objects of criminal-law protection, are defined in Section 1 of the Constitution of the Republic of Kazakhstan, entitled “General Provisions.” Its content includes:

the establishment of the form of state power in the Republic of Kazakhstan (a unitary state with a presidential form of government);

the determination of the source of power in the Republic of Kazakhstan (the people);

the limits of the exercise of sovereignty (the entire territory of the Republic of Kazakhstan);

the principle of separation of state power into legislative, executive and judicial branches;

other aspects and principles of the constitutional structure of the Republic of Kazakhstan.

According to Subparagraph 3) of Article 4 of the Law of the Republic of Kazakhstan “On National Security of the Republic of Kazakhstan,” political security is a state of protection of the foundations of the constitutional system, the activities of the system of state bodies and the procedure for public administration against real and potential threats, under which the observance of the rights and freedoms of citizens and social groups, the balance of their interests, the stability and integrity of the State, and its favourable international standing are ensured.

The provisions of the Criminal Code of the Republic of Kazakhstan, in turn, prohibit the forcible alteration of the fundamental provisions of the state system established by the Constitution, as well as actions connected therewith that cause damage to the sovereignty and territorial integrity of the Republic of Kazakhstan (Chapter 5 of the Criminal Code, “Criminal Offenses Against the Foundations of the Constitutional System and the Security of the State”).

The objective of the Criminal Code of the Republic of Kazakhstan to ensure peace and the security of humanity emphasizes its international legal significance. Chapter 4 of the Criminal Code, “Crimes Against Peace and Security of Humanity,” provides for rules ensuring the participation of the Republic of Kazakhstan in the international fight against crime by means of criminal law.

In the science of criminal law, the opinion has been expressed that the protection of the peace and security of all humanity cannot be established as an objective of national legislation, either in substance (there are no such capabilities) or for formal reasons (appropriating a share of the role of a leading State), in contrast to the jurisdiction and authority of the United Nations and its specialized organizations. In our view, ensuring peace and the security of humanity is the responsibility of everyone living on Earth. However, peace and security can and must be protected within the territory of the Republic of Kazakhstan through Kazakhstani criminal legislation. The legislator acted correctly by including the protection of peace and security as an independent objective of criminal legislation in the Criminal Code.

At the same time, criminal legislation, as part of the legal system, is implemented through all possible methods provided for in policy documents.

An important objective facing the Criminal Code of the Republic of Kazakhstan is the prevention of criminal offenses, which is implemented in two areas: general and special prevention. Their consolidation was the result of a lengthy scientific discussion. Under the Criminal Code of the Kazakh SSR, the prevention of crimes was established as an objective of criminal law only in relation to punishment. Such an approach did not reflect the true place of crime prevention in the fight against crime or the role of criminal law. The legislator reasonably corrected this shortcoming by identifying the prevention of crimes (criminal offenses) as an independent objective of the Criminal Code of the Republic of Kazakhstan, both in the 1997 Criminal Code of the Republic of Kazakhstan and in the 2014 Criminal Code of the Republic of Kazakhstan.

The objective of preventing criminal offenses is contained in the normative provisions of both the General and Special Parts of the Criminal Code. In the General Part, the preventive effect is embedded in the provisions concerning voluntary abandonment of a criminal offense (Article 26 of the Criminal Code); circumstances excluding the criminality of an act (Articles 32–38 of the Criminal Code); active repentance as grounds for exemption from criminal liability (Article 65 of the Criminal Code); the preventive purpose of imposing compulsory educational measures (Article 84 of the Criminal Code), and so forth. In the Special Part of criminal legislation, the preventive function is performed through the implementation of the principle that criminal-law responses to every committed criminal offense are inevitable.

General prevention is achieved by influencing the consciousness and behaviour of persons inclined to commit criminal acts, as well as by establishing rules that encourage lawful behaviour.

Special prevention is implemented by applying to a person who has committed a socially dangerous act a punishment or other measures of criminal-law influence provided for by the Criminal Code of the Republic of Kazakhstan.

Criminal legislation is intended to put into practice a specific set of fundamental ideas and provisions concerning the strategic directions, methods and means of combating criminal offenses, which constitute the criminal policy of the State. The ultimate goal of criminal policy is to ensure maximum control over criminal offenses through various methods. To this end, law enforcement agencies are assigned the tasks that are priorities at a given time, and the law enforcement and judicial systems are reformed in order to optimize their activities, and so forth.

The implementation of criminal policy also involves the repeal, amendment or adoption of new regulatory legal acts. Laws are continuously improved, and various concepts and programmes for combating criminal offenses are adopted.

Part 2 of the article under commentary provides for the methods of implementing these objectives. They include: 1) establishing the grounds and limits of criminal liability (Article 4); 2) determining which acts dangerous to the individual, society or the State fall within the category of “criminal offenses” (Article 10); 3) determining the types of punishment and other measures of criminal-law influence (Articles 40–51, 81, 84, 91–98).

One more important aspect should be addressed. The Criminal Code of the Republic of Kazakhstan does not establish an educational objective. Within the legal framework of the CIS, the legislators of Belarus and Uzbekistan establish educational objectives at the normative level (Article 2 of the Criminal Code of the Republic of Belarus, Article 2 of the Criminal Code of the Republic of Uzbekistan).

In criminal-law theory, the existence of an educational function of criminal law is not disputed by anyone. Intended to protect social values against socially dangerous encroachments, criminal law is inextricably linked with ethical principles, since it inherently incorporates universal human concepts of what is just and proper.

The educational influence of criminal law is exercised in three main areas: in relation to persons who have already committed a criminal offense; in relation to persons potentially capable of committing criminal offenses; and in relation to all citizens as subjects of social relations.

The need to enhance the educational potential of criminal punishment was also substantiated by the renowned eighteenth-century Italian Enlightenment thinker and representative of the classical school of criminology, Cesare Beccaria. In particular, he stated: “Only such punishments should be used which, while remaining proportionate to crimes, would produce the strongest and most lasting impression on the minds of people and be the least painful to the body of the offender.”

It appears that, in the future, the preventive and educational functions of criminal law will increase.

The 2021 Commentary on the Criminal Code of the Republic of Kazakhstan was authored 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, and Honoured Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.

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