Commentary on Article 23. Innocent Infliction of Harm of the Criminal Code of the Republic of Kazakhstan
An act shall be deemed to have been committed innocently if the actions (inaction) and the resulting socially dangerous consequences were not covered by the intent of the person who committed them, and criminal liability for committing such an act and causing socially dangerous consequences through negligence is not provided for by this Code.
An act shall be deemed to have been committed innocently if the person who committed it did not realize and, under the circumstances of the case, could not have realized the social danger of his or her actions (inaction), or did not foresee the possibility of socially dangerous consequences occurring and, under the circumstances of the case, was not obliged or was unable to foresee them. An act shall also be deemed to have been committed innocently if the person, having foreseen the occurrence of socially dangerous consequences when committing the act, had sufficient grounds to believe that they could be prevented, or was unable to prevent such consequences due to the incompatibility of his or her psychophysiological characteristics with the requirements of extreme conditions or neuropsychological overload.
Pursuant to Part 1 of Article 19 of the Criminal Code, a person shall be subject to criminal liability only for those socially dangerous acts (actions or inaction) and the resulting socially dangerous consequences in respect of which his or her guilt has been established. Objective imputation, that is, criminal liability for the innocent infliction of harm, is not permitted (Part 2 of Article 19 of the Criminal Code of the Republic of Kazakhstan). Accordingly, under the provisions of the Criminal Code of the Republic of Kazakhstan, the absence of guilt excludes criminal liability.
The legislative establishment of a provision on the innocent infliction of harm makes it possible to distinguish more precisely between cases of culpable and innocent commission of acts resulting in socially dangerous consequences, draws the attention of law enforcement practitioners to the issues of establishing the guilt of the offender and the subjective elements of the act, and thus serves as one of the guarantees of compliance with the principle of guilt and the prevention of objective imputation.
On the basis of Article 23 of the Criminal Code, three types of innocent infliction of harm may be identified:
a special type of innocent infliction of harm (Part 1 of Article 23 of the Criminal Code);
innocent infliction of harm bordering on criminal negligence (Part 2 of Article 23 of the Criminal Code);
innocent infliction of harm bordering on criminal recklessness (Part 2 of Article 23 of the Criminal Code).
When commenting on Part 1 of Article 23 of the Criminal Code, particular attention should be paid to the criminal law provision set forth in Part 4 of Article 19 of the Criminal Code, according to which an act committed through negligence is recognized as a criminal offense only where this is specifically provided for in the relevant article of the Special Part of the Criminal Code. Thus, the provisions relating to the special type of innocent infliction of harm directly follow from Part 4 of Article 19 of the Criminal Code. A traditional example of the situation under consideration is the infliction of minor harm to health through negligence, since the Criminal Code of the Republic of Kazakhstan does not provide for liability for this act. Accordingly, if the infliction of minor harm to health was not covered by the person's intent, innocent infliction of harm has taken place.
When analyzing the second type of innocent infliction of harm — innocent infliction of harm bordering on criminal negligence — it is appropriate to refer to the content of Part 3 of Article 21 of the Criminal Code, according to which a criminal offense is deemed to have been committed through negligence if a person did not foresee the possibility of socially dangerous consequences resulting from his or her actions (inaction), although, with due attention and foresight, he or she should and could have foreseen those consequences. In the case of innocent infliction of harm bordering on criminal negligence, the person did not realize and, under the circumstances of the case, could not have realized the social danger of his or her actions (inaction), or did not foresee the possibility of socially dangerous consequences occurring and, under the circumstances of the case, was not obliged or was unable to foresee them.
Thus, this type of innocent infliction of harm is associated either with the person's failure to realize the social danger of his or her conduct, which excludes criminal liability for the consequences that have occurred, since a person cannot be held liable for something that lies beyond the scope of his or her consciousness and will, or with the absence of either the objective (the person should have foreseen) or subjective (the person could have foreseen) criterion of negligence. For example, a 17-year-old teenager, while leaving the entrance of a residential building, noticed a neighbor approaching and, out of mischief, decided to frighten him by hiding behind a door partition. As a result of the fright, the neighbor suffered a myocardial infarction and died at the scene. The teenager did not know that the neighbor had a heart condition. Consequently, the person cannot be held liable, since an accident occurred.
As evidenced by materials from judicial and investigative practice, the most common examples of innocent infliction of harm may also include cases in which a person circulates a counterfeit banknote without knowing, and when the circumstances of the case are taken into account, without being able to realize, that the banknote is counterfeit; as well as situations in which a person, while actually carrying out the objective elements of a criminal offense, has been misled by another person or a group of persons and thus acts as an instrument of the crime. For example, one person asks an acquaintance to deliver a bag containing medicines to a relative in another city. It subsequently turns out that, together with the medicines, the bag contained narcotic drugs.
The third type of innocent infliction of harm borders on such a form of negligence as criminal recklessness, which, pursuant to Part 2 of Article 21 of the Criminal Code, refers to cases where a person foresaw the possibility of socially dangerous consequences resulting from his or her actions (inaction), but, without sufficient grounds, recklessly relied on preventing those consequences. In a situation involving the innocent infliction of harm, a person who foresaw the occurrence of socially dangerous consequences when committing the act had sufficient grounds to believe that they could be prevented, or was unable to prevent those consequences due to the incompatibility of his or her psychophysiological characteristics with the requirements of extreme conditions or neuropsychological overload. Reliance on sufficient grounds for preventing consequences may be based on the availability of adequate life experience, specialized knowledge, and so forth.
The issue of the legal regulation of the innocent infliction of harm on psychophysiological grounds is one of the controversial and topical issues of criminal law. I am convinced that law enforcement authorities often do not fully understand the provisions of Part 2 of Article 23 of the Criminal Code. I doubt that our state's highest judicial authority is prepared to provide an unequivocal and consistent clarification of the rules for establishing the innocent infliction of harm on psychophysiological grounds. It seems that, in order to provide a proper legal assessment in this case, it is necessary to take into account the psychophysiological characteristics and individual traits of the particular person, as well as the situations in which they arise.
Psychological science defines an individual's psychophysiological characteristics as a set of signs, properties and features of a person's mental activity within the framework of his or her physiological processes.
The infliction of harm is recognized as innocent not because of the absence of the intellectual or volitional element of guilt, but due to the objective impossibility of preventing the occurrence of socially dangerous consequences, the possibility of which the person is aware of.
The determining criterion for the innocent infliction of harm on psychophysiological grounds is the objective criterion — the mandatory existence of extreme conditions or neuropsychological overload. Both must be real and objective.
It should be borne in mind that the definition and content of the concept of “neuropsychological overload” are quite controversial. In psychology, this concept traditionally refers to a particular mental state, namely: mental tension, frustration (a mental state arising in a situation of the actual or perceived impossibility of satisfying certain needs or, more simply, in a situation where desires do not correspond to available opportunities), confusion and affect. In psychology, extreme conditions are understood as situations that place demands on a person that exceed the limits of his or her adaptive capabilities. For example, a bus driver sets out on a long-distance journey and remains behind the wheel for 20 consecutive hours. This will undoubtedly affect his fatigue and may well cause an accident. Another example is a situation in which, while rescuing a drowning person, the latter, struggling for his or her life, pulls the person who came to help underwater, remains alive, while the rescuer dies. Accordingly, in such situations, the persons concerned will not be held criminally liable.
Extreme conditions may arise through a person's interaction with nature, technology, or other individuals. At the same time, it is not possible to establish an exhaustive list of extreme conditions in advance. In all cases, the resolution of the issue depends on the actual circumstances of the case. In each instance of extreme conditions, the following issues must be established:
- whether there was an obvious possibility of avoiding the “extreme” situation;
- whether the person causing the harm had the necessary degree of freedom of action to terminate the dangerous situation.
The psychophysiological characteristics referred to in Part 2 of Article 23 of the Criminal Code may manifest themselves in such states as stress, terror, shock, and others.
At the same time, in all cases, the conclusion that a person's psychophysiological characteristics were incompatible with the requirements of extreme conditions or neuropsychological overload must be duly confirmed by the findings of a forensic psychological examination.
Commentary on the Criminal Code of the Republic of Kazakhstan dated 2021, 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.
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