Commentary on Article 316. Cruelty to Animals of the Criminal Code of the Republic of Kazakhstan
1. Cruelty to animals resulting in their death or injury, if such an act is committed out of hooligan motives or using sadistic methods, or in the presence of minors, —
shall be punishable by a fine in the amount of up to one hundred and twenty monthly calculation indices, or correctional labour in the same amount, or community service for a period of up to one hundred and twenty hours, or arrest for a period of up to thirty days.
2. The same act committed by a group of persons or by a group of persons acting upon prior conspiracy, or repeatedly, —
shall be punishable by a fine in the amount of up to two hundred monthly calculation indices, or correctional labour in the same amount, or community service for a period of up to two hundred hours, or arrest for a period of up to fifty days.
The public danger of this criminal misdemeanor is expressed in the fact that causing harm to representatives of the animal world may lead to the development in people of such traits as cruelty, cynicism, aggression, etc.
The object of the criminal misdemeanor under consideration is public morality.
The subject matter is animals and birds, both wild and domestic, as well as animals kept in captivity (in circuses, zoos, enclosures, etc.).
According to subparagraph 35) of Article 1 of the Law of the Republic of Kazakhstan dated July 9, 2004, "On the Protection, Reproduction and Use of Wildlife", animals are wild animals (mammals, birds, reptiles, amphibians, fish, mollusks, insects and others) living in a state of natural freedom on land, in water, in the atmosphere and in the soil.
In accordance with Article 3 of the aforementioned Law, wildlife is divided into the following categories according to its intended purpose:
rare and endangered animal species;
animal species that are objects of hunting;
animal species that are objects of fishing;
animal species used for other economic purposes (except hunting and fishing);
animal species not used for economic purposes but having ecological, cultural and other value;
animal species whose population is subject to regulation for the purposes of protecting public health, preventing diseases among agricultural and other domestic animals, preventing damage to the environment, preventing danger to the population, and preventing significant damage to agricultural activities.
From the objective aspect, the elements of the criminal misdemeanor are characterized by cruelty to animals resulting in their death or injury, provided that such an act is committed out of hooligan motives or using sadistic methods, or in the presence of minors.
Cruelty should be understood as beating animals, using agonizing methods of killing them, using them for experiments (with the exception of scientific experiments), using animals in competitions during which they die or inflict injuries on each other, etc.
Injury means any damage to an animal's body associated with a violation of its anatomical integrity (cutting off its tail or limbs, depriving it of its eyes, etc.).
The criminal misdemeanor under consideration may also be committed through omission. Such omission may consist of depriving an animal or bird of water or assistance. Liability for omission arises only if the person was obliged to care for the animal. This applies to domestic animals, as well as wild animals kept in captivity.
The criminal consequences are the death of the animal or the infliction of injury upon it.
For the purposes of establishing the elements of the criminal misdemeanor, it is important to determine that the death or injury of the animal occurred specifically as a result of cruel treatment.
The elements of this criminal misdemeanor are characterized by the presence of several additional features. It shall exist only if the specified socially dangerous act is committed:
out of hooligan motives;
using sadistic methods;
in the presence of minors.
Criminal liability arises for committing this criminal misdemeanor out of hooligan motives, expressed in a gross violation of public order and an apparent lack of respect for society; using sadistic methods, which involve inflicting particularly excruciating and prolonged pain on an animal (skinning a living animal, burning it alive, cutting off its limbs or other body parts, etc.).
An act shall be considered committed using sadistic methods if it was accompanied by the infliction of особые suffering upon the animal. In this case, the offender demonstrates pathological cruelty and derives pleasure from witnessing the animal's suffering in the presence of minors, that is, persons who have not reached the age of fourteen. It must be established that the minor was not merely present and observing the process, but understood the fact that the animal was being subjected to cruel treatment. The commission of such acts in the presence of infants does not constitute the elements of a criminal offense.
By its structure, the composition of the criminal misdemeanor is material. The criminal misdemeanor shall be considered completed from the moment cruel treatment of animals results in their death or injury.
From the subjective aspect, the criminal misdemeanor is characterized by an intentional form of guilt in the form of direct intent, that is, the person is aware of the unlawful nature of their actions involving cruel treatment of animals resulting in their death or injury, committed out of hooligan motives or using sadistic methods, or in the presence of minors, and desires to commit such actions.
The subject is a sane individual who has reached the age of sixteen.
Part 2 of Article 316 of the Criminal Code provides for qualifying circumstances that aggravate liability for committing the criminal misdemeanor:
committed by a group of persons or by a group of persons acting upon prior conspiracy;
repeatedly (see the commentary to Part 3 of Article 297 of the Criminal Code).
The acts provided for in Parts 1 and 2 of Article 316 of the Criminal Code are classified as criminal misdemeanors.
Commentary of 2021 to 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.
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