Commentary on Article 4. Grounds for Criminal Liability under the Criminal Code of the Republic of Kazakhstan

The sole ground for criminal liability is the commission of a criminal offense, that is, an act containing all the elements of a crime or a criminal misdemeanor provided for by this Code. No person may be subjected to criminal liability twice for the same criminal offense. The application of criminal law by analogy is not permitted.

State coercion applied to persons guilty of violating legal provisions takes various forms of legal liability. One of these forms is criminal liability.

Criminal liability is a complex social and legal consequence of a person's commission of a criminal offense, consisting of coercive measures provided for by criminal law as the State's response to such an offense.

Criminal liability is understood as state coercive measures provided for by criminal law and applied, pursuant to a court judgment, to a person who has committed a criminal offense (his or her conviction and the imposition of punishment), resulting in a criminal record.

Criminal liability is established by the provisions of the Criminal Code of the Republic of Kazakhstan, which specify which socially dangerous acts are recognized as criminal offenses, provide an exhaustive list of such acts in the Special Part of the Criminal Code, and prescribe penalties for their commission.

Criminal liability is characterized by the following features.

First, in terms of the grounds for its application, criminal liability is imposed only for the commission of an act containing all the elements of a criminal offense. Other types of liability, such as disciplinary liability and civil liability in the form of compensation for material damage, may arise both from acts containing the elements of a criminal offense and from the commission of other offenses.

Second, in terms of the content of liability, criminal liability is the strictest type of legal liability. It includes State condemnation of the person and the act committed by that person, since the judgment is delivered in the name of the State, and, where punishment is imposed, State coercion in the form of restrictions on rights associated with the execution of the sentence. When other types of liability are imposed on a person, including by a court, State condemnation is absent, since such liability is not imposed in the name of the State.

Third, in terms of the authority imposing liability, criminal liability is imposed exclusively by a court and only through a conviction that has entered into legal force. No other authority or official may impose criminal liability. Other types of legal liability may be imposed both by courts and by other authorities or persons.

Fourth, in terms of the procedure for its application, criminal procedure legislation establishes a special procedure for imposing criminal liability. The Criminal Procedure Code regulates the activities of investigative authorities and courts in imposing criminal liability. The imposition of other types of legal liability is regulated by other legal provisions.

Fifth, in terms of the category of persons on whom liability is imposed, criminal liability is personal in nature, i.e., it is imposed only on a natural person guilty of committing a criminal offense (Article 15 of the Criminal Code). Other types of legal liability, such as civil and administrative liability, may also be imposed on legal entities.

The issue of the grounds for criminal liability has significance not only in criminal law but also in political and general civil terms. It can be said that the approach to resolving this issue largely determines the level of development of a law-governed State and the extent to which the rights and freedoms of individuals and citizens are guaranteed.

When considering the issue of the grounds for criminal liability, it should be noted that the law does not disclose its content, and this issue is addressed differently in the theory of criminal law. However, the most widely accepted position is that the content of criminal liability consists of the obligation to answer for one's actions and the actual implementation of that obligation.

The concept of the corpus delicti is also not defined by law. In the theory of criminal law, the corpus delicti is understood as the aggregate of objective and subjective elements established by criminal law that characterize a specific socially dangerous act as a crime. It appears that this definition is also applicable to the concept of the elements of a criminal offense and to its particular form — the concept of a criminal misdemeanor, which was introduced into the Criminal Code of the Republic of Kazakhstan for the first time.

A criminal offense and the elements of a criminal offense are similar, but not identical, concepts. A criminal offense is a specific act or omission committed by a particular person in objective reality and characterized by numerous purely individual features. In turn, the elements of a criminal offense constitute a normative category that establishes only the typical characteristics of a specific criminally punishable act. Therefore, if the commission of a criminal offense constitutes the factual ground for criminal liability, the elements of a criminal offense constitute its legal ground. These two grounds are interrelated and form a single whole: without a corpus delicti or the elements of a criminal misdemeanor established by law, a socially dangerous act cannot be recognized as criminal; likewise, the existence of a criminal law provision establishing the elements of a particular crime or criminal misdemeanor does not constitute grounds for criminal liability if a person has not committed an act falling within those elements. Therefore, both the legislator and legal theory and practice recognize that the sole ground for criminal liability is the commission of a socially dangerous act containing all the elements of a criminal offense provided for by criminal law.

The commission of an act containing all the elements of a crime or criminal misdemeanor is not only the sole but also the sufficient ground for criminal liability. No other circumstances (information characterizing the personality of the offender, their origin, the political repercussions of the act committed, etc.) may serve as grounds for liability or give rise to criminal legal relations. However, information characterizing the offender, their conduct prior to the commission of the criminal offense, and other circumstances are relevant to the case and may be taken into account by the court when imposing punishment.

Each element of a criminal offense has its own legal significance, and only their aggregate may serve as grounds for imposing criminal liability on a person for the act committed. The absence of even one element of a criminal offense means that the corpus delicti is absent and, consequently, that there are no grounds for criminal liability.

The objective elements constituting the elements of a criminal offense include the object, the subject matter, and the objective aspect of the offense.

The object of a criminal offense refers to the benefits (interests) or social relations against which a person committing a criminal offense directs their actions and which are harmed or may be harmed as a result of a socially dangerous act. They are generally listed in Part 1 of Article 2 of the Criminal Code and are also indicated in the titles of the chapters of the Special Part of the Criminal Code. At the same time, the commission of a criminal offense must encroach upon these relations, causing harm or creating a real or at least potential threat of causing such harm.

A traditional definition in the theory of criminal law is that the object of a crime consists of social relations protected by criminal law, which are harmed or threatened with harm when a crime is committed. The subject matter of the crime and the victim of the crime are traditionally classified as optional elements of the object and are accorded equal significance when resolving issues of criminal liability.

The subject matter of a crime is a physical object of the material world or an intellectual value upon which direct impact is exerted during the commission of a crime.

Under criminal procedure law, a victim is a person in respect of whom there are grounds to believe that the criminal offense has directly caused moral, physical, or property damage (Part 1 of Article 71 of the Criminal Procedure Code). The person conducting the pre-trial investigation is obliged to recognize a person as a victim without delay in the cases provided for in Part 1 of Article 71 of the Criminal Procedure Code (Part 1-1 of Article 71 of the Criminal Procedure Code). A person is also recognized as a victim where the harm was caused to them by an act prohibited by the Criminal Code and committed by an insane person (Part 2 of Article 71 of the Criminal Procedure Code). A person is recognized as a victim in criminal proceedings after the relevant resolution has been issued (Part 3 of Article 71 of the Criminal Procedure Code).

Determining the object is of exceptional importance when classifying criminal offenses.

It should be noted that a number of criminal offenses provided for by criminal law simultaneously encroach upon two or more objects of criminal law protection. In this regard, legal scholarship distinguishes between the principal, additional, and optional direct objects. The first two of these objects affect the legal classification of criminal offenses. The principal direct object is the object that suffers harm in every case of commission of a criminal offense of the relevant type and for the protection of which the legal provision was designed. The additional direct object also suffers harm in every case of commission of a criminal offense of the relevant type, but only incidentally, since the legal provision was not designed for its protection. A feature of the principal direct object is that it is at the same level as the generic object. Thus, when robbery is committed (Article 192 of the Criminal Code), two objects suffer harm: property relations and the health of a person. In this case, property relations constitute the principal direct object, while the person's health constitutes the additional direct object. In certain cases, additional direct objects may be specified alternatively. Thus, in the elements of extortion (Article 194 of the Criminal Code), property relations constitute the principal direct object, while the additional objects may be either a person's health or their honor and dignity.

When a criminal offense is committed, if the degree of harm caused to the additional object is less than or equal to the degree of harm caused to the principal object, the act is classified under the article providing for an offense against the principal object, and no additional classification as a separate offense is required.

Thus, according to Paragraph 3 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated May 11, 2007, “On Certain Issues of the Classification of Crimes Related to Rape and Other Violent Sexual Acts”:

“Intentional infliction of minor or moderate bodily harm on a victim during rape, the commission of violent sexual acts, or an attempt to commit such acts is covered by the disposition of Article 120 or Article 121 of the Criminal Code and does not require additional classification. If moderate or grievous bodily harm is inflicted on the victim after rape or the commission of other violent sexual acts, there is an aggregate of crimes.

Intentional infliction of grievous bodily harm on victims during rape or the commission of other violent sexual acts shall be classified accordingly under Paragraph 2) of Part 3 of Article 120 of the Criminal Code as rape resulting in other grave consequences, or under Paragraph 2) of Part 3 of Article 121 of the Criminal Code as the commission of other violent sexual acts resulting in other grave consequences.”

If, during the commission of a crime, the degree of harm caused to the additional object is greater than the degree of harm caused to the principal object, classification based on the aggregate of crimes is required. For example, if unlawful entry into a dwelling against the will of the person residing there involves violence consisting of the infliction of grievous bodily harm, the act should be classified under Part 2 of Article 149 of the Criminal Code in conjunction with Part 1 of Article 106 of the Criminal Code. Only one exception to this rule has been established by law. Thus, under Part 1 of Article 13 of the Criminal Code, in the case of an aggregate of criminal offenses, a person is criminally liable for each act committed under the relevant article or part of an article, unless the elements of those acts are covered by a provision of a single article or a provision of the Criminal Code prescribing a more severe punishment.

If several additional objects are listed alternatively in an article, the infliction of harm upon at least one of them is sufficient to classify the crime under that article. Thus, for the elements of the offense provided for in Article 409 of the Criminal Code, “Threats or Violent Acts in Connection with the Administration of Justice or Pre-Trial Investigation,” the principal object of which is the interests of justice, it is sufficient to establish a threat of causing harm to any of the alternatively listed additional objects: life, health, or property relations.

It should be noted that in a number of cases difficulties arise in determining the object of a criminal offense, which leads to errors in the classification of acts. For example, a district court incorrectly identified the object of the offense as hooliganism in the actions of L., who caused bodily harm to Y. under the following circumstances. Near his home, on a roadway that had been closed to traffic, L. saw an SUV driving along the street and threatening to demolish a children's playground that he had built. In order to prevent its demolition, L. picked up a piece of reinforcing steel and threw it toward the vehicle, thereby causing moderate bodily harm to the driver. The regional criminal division correctly, in our opinion, reclassified L.'s actions under Part 1 of Article 107 of the Criminal Code, since they were directed not at disturbing public order but at causing harm to an individual.

The subject matter is an optional element of the object of a criminal offense. Determining the subject matter of a criminal offense contributes to a deeper and more accurate understanding of the nature of the object of the criminal offense and to the proper classification of the act.

The subject matter of a criminal offense is a specific material object in which certain aspects and properties of social relations are manifested and upon which physical or psychological influence is exerted, thereby causing socially dangerous harm within the sphere of those social relations.

The subject matter is not present in every case, and it is not always harmed. For example, in criminal offenses against the person, the subject matter of the criminal offense is absent.

However, for many elements of criminal offenses, the subject matter is one of the principal, mandatory elements. In criminal offenses committed for mercenary purposes, it is impossible to impose criminal liability unless the subject matter of the encroachment has been determined. For example, in its ruling in case A., the Judicial Panel for Criminal Cases of the Supreme Court stated that a conviction in a robbery case was subject to reversal and the case was to be remitted for further investigation because the judgment did not specify the stolen items or their quantity.

The physical or social properties of the subject matter of a criminal offense often serve as grounds for distinguishing between related elements of criminal offenses, as well as for distinguishing a criminal offense from non-criminal acts. Accordingly, the objects of the encroachment differ: in the first case, the theft of firearms constitutes an encroachment on public safety (Article 291 of the Criminal Code), whereas in the second case, the theft of smooth-bore hunting firearms falls within criminal offenses against property (Article 188 of the Criminal Code).

The objective aspect of a criminal offense consists of the external elements provided for by criminal law that characterize the criminal act (socially dangerous action or omission), the criminal result, the causal relationship between them (the action or omission and the resulting consequence), as well as the place, time, circumstances, method, instruments, and means of committing the criminal offense.

The objective aspect constitutes the principal content of the dispositions of the articles of the Special Part of the Criminal Code of the Republic of Kazakhstan, and its elements form the basis of the subject matter of proof in criminal proceedings. In law enforcement practice, the incorrect establishment of objective elements gives rise to errors in the legal classification of criminal acts and, consequently, violates the rights of citizens in criminal proceedings.

The act is a mandatory element of the objective aspect of a criminal offense and may take the form of an action or an omission.

A crime, in accordance with Part 2 of Article 10 of the Criminal Code of the Republic of Kazakhstan, is a culpably committed socially dangerous act (action or omission) prohibited by the Criminal Code under threat of punishment, while a criminal misdemeanor, pursuant to Part 3 of the same Article, is a culpably committed act (action or omission) that does not pose a significant public danger, causes minor harm, or creates a threat of causing harm to an individual, organization, society, or the State. It follows from the content of these concepts that an act may take two forms: action and omission.

An action should be understood as socially dangerous, voluntary, and active human behavior. An action in the commission of a criminal offense may consist not of a single bodily movement but of a combination of such movements. For example, when an explosion is carried out using a remote-control device, the action may seemingly consist merely of pressing a button. However, in order to blow up the intended target, the offender must place explosives in a specific location, determine the place and time of the explosion, ensure that the remote-control device is in working order and ready for use, etc.

An omission is socially dangerous, voluntary, and passive behavior consisting of a person's failure to perform actions that they were required and able to perform by virtue of the duties imposed upon them. The main criterion for distinguishing criminal-law omission from the absence of an act is the criterion of the person's obligation to act in a certain manner. Examples include failure to fulfill duties relating to the upbringing of a minor (Article 140 of the Criminal Code) and failure to provide assistance to a sick person (Article 320 of the Criminal Code).

K. worked as a caregiver for L., a woman suffering from cancer. Her duties included ensuring that L. took her medication on time and providing her with massages. During her employment, K. gained L.'s trust. Since L. had no relatives, she made a will leaving her apartment to K. After the will was drawn up, K. stopped fully performing her duties. In particular, for a period of one week, she did not give L. painkillers. As a result, L. died from pain. The preliminary investigation authorities established the fact of K.'s omission, and she was brought before the court under Part 1 of Article 96 of the Criminal Code.

The list and nature of socially dangerous actions (omissions) may be exhaustively described in the disposition of an article of the Special Part of the Criminal Code, as is the case with Articles 126, 149, 287, 297 of the Criminal Code, etc. This method of legislative construction of a disposition substantially limits the scope of judicial discretion in the legal classification of a crime, since the precise application of criminal law excludes the possibility of an expansive interpretation of the lists of types of socially dangerous conduct. In such cases, the act is classified under the article providing for the type of conduct by which the established encroachment was committed.

A disposition may contain no description of the act and instead indicate only the socially dangerous result (Articles 99, 106, and 107 of the Criminal Code). When the elements of the objective aspect are described in this legislative manner, the method of committing the crime does not affect its classification, except in cases where it is assigned significance as an aggravating element. For example, murder may be committed by firing a gun or by striking with a knife, which does not affect its classification. The principal factor is the criminal result: causing the death of another person (Part 1 of Article 99 of the Criminal Code). However, murder committed, for example, by burning a person alive must be classified as murder committed with particular cruelty (Paragraph 5) of Part 2 of Article 99 of the Criminal Code).

In a number of cases, the description of an act is provided through the use of blanket dispositions, for example, in Articles 156, 214, 278, 279, and 327 of the Criminal Code. In reference dispositions, the act is not described but instead a reference is made to another part of the same article or to another article of the Special Part of the Criminal Code in which the act is described, as is the case, for example, in Parts 2 and 3 of Article 126 and Part 1 of Article 195 of the Criminal Code.

The disposition of an article of the Special Part of the Criminal Code may contain several alternative actions. In such cases, the commission of at least one of them indicates the presence of the elements of a crime, as, for example, in Article 287 of the Criminal Code. The disposition of an article of the Special Part of the Criminal Code may contain two mandatory actions, as, for example, in Article 194 of the Criminal Code, “Extortion.” For the elements of extortion to be present, two mandatory actions are required: a demand for the transfer of another person's property or rights to property, or the performance of other property-related actions, and a threat to use violence, destroy or damage another person's property, disseminate information discrediting the victim or their relatives, or commit other acts that may cause substantial harm to the interests of the victim or their relatives.

Consequences as an element of the objective aspect of a criminal offense constitute the criminal result in the form of harm to an object of criminal-law protection resulting from the criminal offense committed (action or omission).

The social danger of the consequences of a criminal offense is one of the principal indicators of the degree of danger of the act as a whole and directly determines the severity of criminal liability and punishment.

By reference to consequences, criminal law distinguishes between material, formal, and truncated elements of criminal offenses. Thus, where the harm caused is material or physical in nature and, consequently, can be accurately established and measured, the legislator constructs material elements, for example, in relation to theft and the infliction of bodily harm.

During a court hearing, the prosecutor withdrew the charge under Part 1 of Article 188 of the Criminal Code, explaining that the amount of damage caused had not been established either during the investigation or at the court hearing. The amount of 150,600 tenge indicated in the charge represented the cost of a new entrance door; however, no new door had been installed for the victim, and only the old entrance door had been repaired, the cost of which had also not been determined. By a court ruling, the criminal case against S. under Part 1 of Article 188 of the Criminal Code was terminated due to the absence of the elements of a criminal offense in his act.

Formal elements are constructed for cases in which the damage caused by a criminal offense is intangible in nature, for example, in the case of insult (Article 131 of the Criminal Code). In such cases, the legislator limits itself to specifying the socially dangerous act without describing harmful consequences.

Truncated elements include acts for which the legislator, with the aim of strengthening liability, does not specify consequences, as, for example, in the case of the creation of an organized group or criminal organization, as well as the leadership thereof or of a structural subdivision of a criminal organization (Article 262 of the Criminal Code).

One of the mandatory conditions for criminal liability is the need to establish a causal relationship. A causal relationship is the connection between a socially dangerous act (action or omission) and the criminal consequences that have occurred.

Without a causal relationship, it is impossible to determine the correct classification of a criminal offense. The establishment of a causal relationship between a person's actions and the consequences that have occurred is carried out by investigative authorities and the court on the basis of expert opinions and other evidence.

For the correct determination of a causal relationship, a number of conditions (rules) must be observed:

1\. It is necessary that the act committed (action or omission) precede the criminal consequence in time.

During an argument with Sh., O. struck him in the temple with a hammer. Some time later, I. entered the room. I. harbored hostile feelings toward Sh. and, upon seeing him lying on the floor, struck him on the head with a metal reinforcing bar. A forensic medical examination established that Sh.'s death resulted from a fracture of the temporal bone caused by the hammer blow. The court rightly recognized a causal relationship only between O.'s blow and Sh.'s death, convicted O. of intentional murder, and convicted I. of attempted murder;

2\. Application of the principle of artificial isolation of phenomena. It means that, in order to establish a causal relationship, it is necessary, on the one hand, to isolate the conduct of the suspect (accused, defendant) and, on the other hand, the resulting outcome;

3\. When examining a causal relationship, it is necessary to proceed from the consequence to the act. This is due not only to the fact that, in investigative practice, the investigation of a criminal offense resulting in harmful consequences begins with the discovery of that result, but, above all, to the fact that a causal relationship consists of many links and can only be understood by moving from one link to another.

4\. The determination of a causal relationship is made dependent on the possibility of foreseeing the occurrence of the result. Legal literature describes a case in which, on a suburban railway platform, an intoxicated Z. approached an unfamiliar citizen and began shaking him by the lapels of his jacket. After five minutes of this method of “settling the matter,” the victim unexpectedly fell onto the platform, began convulsing, foam appeared at his mouth, and he subsequently died. The criminal case opened in connection with the death was terminated due to the absence of the elements of a crime. A forensic medical examination established that the victim suffered from a rare disease of the cerebral blood vessels, as a result of which the “shaking” proved fatal for him.

In the example cited, a causal relationship is clearly present; however, the criminal result occurred due to the victim's exceptional characteristics, or rather, his latent illness. Liability in this case will depend on the person's subjective attitude toward the act committed.

The place of commission of a criminal offense is a specific territory where it is committed. The place of commission of a criminal offense may affect the classification of the act if the legislator has included it in the criminal law provision as a mandatory element of the specific elements of a criminal offense. For example, the disposition of Article 234 of the Criminal Code provides for liability for economic smuggling where the movement of goods or other items on a large scale takes place across the customs border of the Eurasian Economic Union.

In many elements of criminal offenses, the specific characteristics of the place of commission are provided for as aggravating elements. Thus, criminal liability under Paragraph 1) of Part 4 of Article 337 of the Criminal Code for illegal hunting arises where it is committed in specially protected natural areas or territories experiencing an environmental emergency.

The time of commission of a criminal offense is understood as a specific period during which a criminal offense may be committed. For example, in accordance with Article 150 of the Criminal Code, obstruction of the free exercise by a citizen of their electoral rights or the right to participate in a referendum, as well as unlawful interference with the work of election commissions or referendum commissions and obstruction of voting, the performance of duties related to the registration of candidates and party lists, the counting of votes, and the determination of voting results in elections or a referendum, presupposes that this crime is committed at a specific time — during the period of elections to the Parliament of the Republic of Kazakhstan, maslikhats, or a referendum.

When criminal law provisions are constructed, the time of commission of a criminal offense may be included in the list of mandatory constitutive elements. Thus, a mandatory element of Article 100 of the Criminal Code is the killing of a newborn child by the mother during childbirth and in the subsequent period.

In most cases, time constitutes an aggravating circumstance and forms part of the aggravated elements of a criminal offense. For example, violation of the rules governing combat duty, committed in a combat situation or during wartime, is provided for as a particularly aggravated form under Part 3 of Article 444 of the Criminal Code.

The circumstances of the commission of a criminal offense are the social conditions under which the criminal offense takes place. For example, under Article 175 of the Criminal Code, one form of high treason is the defection of a citizen of the Republic of Kazakhstan to the enemy's side during a war or armed conflict, meaning that the circumstances of war or armed conflict become a necessary element of the objective aspect of this form of high treason.

The method of committing a criminal offense refers to the techniques and methods used by the guilty person to commit it. Thus, if the public insult of the President or a member of Parliament is carried out through the mass media, criminal law, in accordance with Part 2 of Article 375 and Part 2 of Article 376 of the Criminal Code, provides for increased liability for such an insult.

Of the aforementioned optional elements, the method of committing criminal offenses most frequently serves as a constitutive element. This is the case, for example, with the articles concerning theft (Articles 187–192 of the Criminal Code), and it is a decisive element for distinguishing these criminal offenses from one another.

Instruments and means of committing a criminal offense are the objects and devices by means of which the criminal offense was committed (thus, the use of weapons or objects used as weapons during robbery increases the public danger of this act — Paragraph 4) of Part 2 of Article 192 of the Criminal Code).

The instruments and means of committing a criminal offense are included among the circumstances that must be established in every criminal case; they serve the purposes of individualizing punishment and also have significant evidentiary value.

The instruments and means of committing a criminal offense differ from the subject matter of the encroachment in that they are not connected in any way with the social relations against which the encroachment is directed. For example, a weapon used in a murder has no connection whatsoever with the social relations aimed at ensuring the protection of life. Conversely, the subject matter of a criminal offense is always connected with the object against which the encroachment is directed.

If the place, time, method, circumstances, and other details of the commission of a criminal offense are not specified as either constitutive or aggravating elements of the criminal offense, they must nevertheless be established, since their establishment means that the event of the criminal offense has been established. They are subject to proof in accordance with Article 113 of the Criminal Procedure Code and may also contribute to distinguishing between crimes. Thus, one of the elements that helps distinguish unlawful deprivation of liberty (Article 126 of the Criminal Code), kidnapping (Article 125 of the Criminal Code), and hostage-taking (Article 261 of the Criminal Code) is the circumstances under which these crimes are committed. In kidnapping and unlawful deprivation of liberty, the offender seeks to avoid publicity. Interested persons (for example, relatives of a kidnapped person in cases involving a ransom demand) are informed of the act committed only when necessary. In hostage-taking, the offender seeks to make their actions public in order to use them as leverage to exert pressure on the recipient of their demands.

The subjective aspect of a criminal offense is the internal essence of the act; it is the mental activity directly associated with the commission of a criminal offense. It forms the psychological, that is, subjective, content of the criminal offense and is therefore its internal aspect.

The “core” of the subjective aspect and a mandatory element of any criminal offense is guilt. No infliction of harm may be recognized as a criminal offense if the person who caused the harm is not guilty. Guilt may be intentional or negligent (see the commentary to Articles 19–23 of the Criminal Code).

Guilt, as a mandatory element of the subjective aspect of the elements of a criminal offense, has the greatest influence on the classification of criminal offenses.

Criminal law contains a number of paired elements of crimes that completely coincide in terms of their objective elements, but liability for which is differentiated depending on the form of guilt with which the act was committed. These include murder (Part 1 of Article 99 of the Criminal Code) and negligent causing of death (Part 1 of Article 104 of the Criminal Code), grievous bodily harm caused intentionally (Part 1 of Article 106 of the Criminal Code) or negligently (Part 3 of Article 114 of the Criminal Code), intentional destruction or damage to another person's property (Part 1 of Article 202 of the Criminal Code), and negligent destruction or damage to another person's property (Part 1 of Article 204 of the Criminal Code).

The element distinguishing these elements of criminal offenses is the form of guilt.

Most articles of the Special Part of the Criminal Code are constructed in such a way that their dispositions contain an indication of the form of guilt under which the described act is considered a criminal offense.

Motive and purpose, as optional elements of the subjective aspect of a criminal offense, are relevant to criminal-law classification only in the commission of intentional offenses. In negligent acts, motive and purpose are established only to determine the causes and conditions contributing to the commission of the crime and to establish the characteristics of the offender's personality, and may only influence the imposition of punishment. The indication of motive and purpose as mandatory elements of the subjective aspect of a criminal offense demonstrates that the relevant criminal offense may be committed only intentionally.

The motive of a criminal offense is the impulse that guided the person when committing the act. In other words, it is the internal driving force behind the criminal offense. It is determined by needs that transform the relevant objects into interests, which give rise to the person's resolve to commit a criminal offense.

The purpose of a criminal offense is the person's conception of the desired result of the act. It differs from motive in that it determines not the source but the direction of the criminal offense. Moreover, a particular purpose generally arises on the basis of a particular motive.

The Special Part of the Criminal Code specifies various purposes of criminal offenses. These include the purposes of sale, mercenary gain, theft, extraction, attack, hijacking, taking possession, distribution, transfer, termination, overthrow or alteration, and others.

All crimes are committed for certain motives and purposes.

Motives and purposes may be specified as a constitutive element of the basic elements of a crime (the mercenary purpose of theft — Paragraph 17) of Article 3 of the Criminal Code).

Motive and purpose may constitute elements necessary for the proper classification and differentiation of crimes where crimes are similar in terms of their objective elements. Thus, the murder of a law enforcement officer in connection with the performance of their official duties or out of revenge for the performance of such duties should be classified under Article 380-1 of the Criminal Code. If, however, a law enforcement officer is killed out of jealousy, classification under that article is excluded, and the act must instead be classified under Part 1 of Article 99 of the Criminal Code.

Determining the purpose for which the offender threatens to use violence or applies violence against the victim helps distinguish between the elements of violent robbery, robbery involving violence, and extortion. In violent robbery or robbery involving violence, violence or the threat of violence is used as a means of immediately taking possession of property or retaining it, whereas in extortion it is used as intimidation intended to ensure that the offender's property demands are fulfilled not immediately but in the future.

Motive and purpose frequently serve as aggravating elements of a crime, as, for example, in Paragraphs 2), 3), 9), 10), 11), and 12) of Part 2 of Article 99 of the Criminal Code and Paragraph 8) of Part 2 of Article 125 of the Criminal Code.

Motives and purposes may be specified alternatively in an article as elements of a crime. In the theory of criminal law, the issue of whether several motives and purposes or only one of them should be attributed to an offender, that is, the issue of the so-called competition of motives and purposes, is controversial. Thus, some authors consider it possible to classify an act simultaneously under several motives, for example, murder committed for mercenary motives and for the purpose of concealing another crime (Paragraphs 8) and 10) of Part 2 of Article 99 of the Criminal Code).

This position cannot be accepted, and simultaneous classification under Paragraphs 8) and 10) of Part 2 of Article 99 of the Criminal Code is impermissible. In such cases, the dominant motive must be identified in the person's conduct, and the classification must be selected accordingly. My position is supported by Paragraph 2 of Clause 16 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated May 11, 2007, “On the Classification of Certain Criminal Offenses Against Human Life and Health,” which states:

“The classification of murder as having been committed for the purpose of concealing another crime or facilitating its commission excludes the possibility of simultaneously classifying the same murder under Paragraphs 2), 8), 9), 11), and 12) of Part 2 of Article 99 of the Criminal Code, which provide for other motives and impulses.”

Motive and purpose may be combined with other aggravating elements characterizing the objective features of the act. Thus, in the case of murder committed by a group of persons, by a group of persons acting upon prior agreement, with particular cruelty, or for hooligan motives, classification under Paragraphs 5), 7), and 9) of Part 2 of Article 99 of the Criminal Code is required.

If motives and purposes are specified alternatively as mandatory elements of the basic elements of an offense, the presence of one of these elements is sufficient to classify the act under the relevant article. For example, an indication of the purpose of obstructing the lawful activities of victims or the motive of revenge for such activities is contained in Part 4 of Article 255, Articles 380-1, 408, and Part 4 of Article 429 of the Criminal Code.

The subject is a person who has committed a criminal offense and possesses the characteristics specified in criminal law.

The mandatory characteristics of a person that make them subject to criminal liability are being a natural person, age, and sanity (see the commentary to Article 15 of the Criminal Code).

In addition, there is an optional element — the special subject of a criminal offense. A person is recognized as a special subject by virtue of possessing a particular characteristic that gives rise to the possibility of committing the relevant criminal act (status, type of activity, duties assigned to them, etc. — see the commentary to Paragraphs 5), 16), 19), 26), 27), 28), and 37) of Article 3 of the Criminal Code).

The value of the elements of a criminal offense also lies in the fact that the process of classifying the act committed may be carried out only on their basis, since they serve as the necessary criminal-law model against which the law enforcement authority compares the facts when selecting the relevant criminal-law provision that most fully and accurately reflects the content of the elements of the criminal offense committed.

The classification of a criminal offense is understood as the establishment and legal recording of the exact correspondence between the factual elements of the act committed by a person and the elements of a specific criminal offense provided for by a criminal law provision. Classification (Latin qualis — “quality,” facere — “to make”) means in the Russian language the characterization of an object or phenomenon, or the assignment of a phenomenon, based on its qualitative characteristics and properties, to certain groups, categories, or classes.

The significance of the correct classification of criminal offenses lies in the fact that it ensures compliance with the principles of legality, guilt, justice, and humanism. Correct classification constitutes the basis for the State's negative assessment of the act committed as a criminal offense, taking into account its severity and degree of public danger, and provides the basis for imposing lawful and fair punishment. The correct classification of a crime predetermines its proper assignment to one of the four categories: minor, medium-gravity, grave, or especially grave (Article 11 of the Criminal Code). The classification of a crime into one category or another is connected with the resolution of numerous criminal-law issues: recognition of recidivism; exemption from criminal liability and punishment; differentiation of conditions for serving a sentence of imprisonment; periods for expungement of a criminal record; and others. The correct classification of criminal offenses determines the procedural procedure for pre-trial investigation of criminal offenses established by law, defines investigative jurisdiction, jurisdiction of courts, procedural time limits, and types of preventive measures. The correct classification of committed acts is also of great criminological significance. It makes it possible to accurately reflect the state, structure, and dynamics of crime in statistical reporting, which, in turn, makes it possible to develop well-founded forecasts, plan, and implement measures to suppress and prevent criminal offenses.

The elements of a crime or criminal misdemeanor are described not only in the dispositions of the articles of the Special Part but also in the relevant articles of the General Part of the Criminal Code of the Republic of Kazakhstan.

While the Special Part of the Criminal Code of the Republic of Kazakhstan describes most of the elements of a particular criminal offense, the General Part, as a rule, describes elements common to all criminal offenses or to a particular group of them (form of guilt, age at which liability arises, unfinished criminal activity, complicity, etc.).

When classifying a crime or criminal misdemeanor, the article of the Special Part of the Criminal Code or its relevant part containing the elements corresponding to the act must be precisely indicated in the procedural documents. In cases involving unfinished criminal activity or complicity, reference must also be made to the relevant articles of the General Part of the Criminal Code of the Republic of Kazakhstan.

Criminal law prohibits bringing a person to criminal liability again for the same criminal offense. This provision follows from Subparagraph 2) of Paragraph 3 of Article 77 of the Constitution of the Republic of Kazakhstan, which states that no person may be subjected to criminal liability twice for the same crime. This means that if a person has previously been subjected to criminal prosecution and, in accordance with the law, has been convicted of committing a particular crime or criminal misdemeanor, acquitted, or had the criminal prosecution against them terminated, they may not be subjected to criminal liability again for the same crime or criminal misdemeanor without the prior judgment (ruling) being annulled in accordance with the procedure established by law.

The recognition of the commission of a criminal offense, that is, an act containing all the elements of a criminal offense, as the sole ground for criminal liability also follows from criminal procedure legislation, under which the absence of the elements of a criminal offense in an act constitutes one of the circumstances precluding proceedings in a case. Consequently, a criminal case may not be initiated, and an initiated case is subject to termination (Paragraph 2) of Part 1 of Article 35 of the Criminal Procedure Code).

The legislator's express indication of the prohibition on applying criminal law by analogy is aimed at eliminating the possibility of judicial discretion when courts resolve criminal cases and apply criminal law in circumstances not expressly provided for by law but similar in certain respects (Subparagraph 10) of Paragraph 3 of Article 77 of the Constitution of the Republic of Kazakhstan).

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 the reform of the law enforcement system under the Security Council of the Republic of Kazakhstan, Honored Worker of the Ministry of Internal Affairs of the Republic of Kazakhstan.

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