Commentary on Article 5. Operation of Criminal Law over Time of the Criminal Code of the Republic of Kazakhstan
The criminality and punishability of an act shall be determined by the law in force at the time the act was committed. The time of commission of a criminal offense shall be recognized as the time when the socially dangerous act (omission) was carried out, regardless of the time when the consequences occurred.
For the purposes of ensuring proper criminal law regulation, implementing the objectives of criminal legislation and observing its principles, the precise determination of the temporal limits of the operation of criminal law is of great importance.
In order to determine which law is applicable in a particular case, it is necessary to establish: 1) the period during which the relevant criminal law was in force; 2) the time when the criminal misdemeanor or crime was committed.
Criminal law operates within strictly defined temporal limits.
Precisely establishing the period during which criminal law is in force over time is important for its application, since this is connected with the proper resolution of the issue of determining the nature of a particular act and bringing the guilty person to criminal liability for its commission.
Issues concerning the operation of criminal law over time are regulated by the Universal Declaration of Human Rights, adopted on December 10, 1948, and are also enshrined in the Constitution of the Republic of Kazakhstan.
Article 11 of the Universal Declaration of Human Rights states: “...No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed.”
Paragraph 4 of Article 4 of the Constitution of the Republic of Kazakhstan provides: “All laws and international treaties to which the Republic is a party shall be published. The official publication of regulatory legal acts concerning the rights, freedoms and duties of citizens shall be a mandatory condition for their application.”
A law is considered to be in force if it has entered into force and has not been repealed by another law. The moment of entry into force and the moment of termination of its operation are of fundamental importance for correctly determining the period during which criminal law is in force.
Pursuant to paragraph 2 of Article 62 of the Constitution of the Republic of Kazakhstan, laws that have entered into force after being signed by the President of the Republic are considered to be in force in the territory of the Republic of Kazakhstan. Resolution No. 20/2 of the Constitutional Council of the Republic of Kazakhstan dated December 29, 1999, clarified that the signing of a law by the President of the Republic indicates that it has acquired its final legal form, taken its place in the hierarchy of regulatory legal acts and become part of the state's legal system. As a rule, the date on which a criminal law enters into force is specified either in the law itself or in the law governing the procedure for its entry into force.
Pursuant to paragraph 2 of Article 35 of the 1991 Declaration of the Rights and Freedoms of Man and Citizen, a law providing for the punishment of a citizen and restrictions on rights shall enter into force after its official publication. This provision is also enshrined in the Law of the Republic of Kazakhstan dated April 6, 2016, “On Legal Acts.” In particular, Article 37 of this Law stipulates that the official publication of regulatory legal acts concerning the rights, freedoms and duties of citizens is a mandatory condition for their application.
The time when a criminal law enters into force is inextricably linked to the time of its official publication. Any announcements in the mass media, on the Internet, in statements made by individuals, etc., concerning an adopted law, including the reproduction of its full text, cannot constitute evidence that the law has entered into force.
Pursuant to Article 37 of the aforementioned Law, the official publications are “Bulletin of the Parliament of the Republic of Kazakhstan,” “Collection of Acts of the President of the Republic of Kazakhstan and the Government of the Republic of Kazakhstan,” and “Bulletin of the National Bank of the Republic of Kazakhstan.”
Legislative acts are also officially published in periodicals that have obtained the right to do so on a competitive basis, in accordance with the procedure determined by the Government of the Republic of Kazakhstan. In addition, regulatory legal acts are officially published electronically in the Reference Control Bank of Regulatory Legal Acts of the Republic of Kazakhstan.
The first official publication of regulatory legal acts must be carried out simultaneously in the Kazakh and Russian languages within thirty calendar days after the date of their entry into force.
As a rule, criminal laws specify the date of publication as the time of their entry into force. The time when a law enters into force may be determined either in the law itself or in a separate act governing the procedure for bringing that law into force. At the same time, individual provisions of a law may enter into force at different times, which are expressly specified in the relevant act or linked to the adoption of another law or the occurrence of certain conditions.
Thus, paragraph 1 of Article 42 of the Law of the Republic of Kazakhstan “On Legal Acts” provides: “Regulatory legal acts, with the exception of the regulatory legal acts specified in the second part of this paragraph, shall enter into force after being signed.”
Pursuant to paragraph 3 of Article 42 of the Law, regulatory legal acts shall enter into force within the following time limits:
- Legislative acts of the Republic of Kazakhstan, with the exception of resolutions of the Parliament of the Republic of Kazakhstan and its Chambers, regulatory legal decrees of the President of the Republic of Kazakhstan, regulatory legal decrees of the Chairman of the Security Council of the Republic of Kazakhstan, and regulatory legal resolutions of the Government of the Republic of Kazakhstan — upon the expiry of ten calendar days after the date of their first official publication, unless other time limits are specified in the acts themselves or in the acts governing their entry into force;
- Resolutions of the Parliament of the Republic of Kazakhstan and its Chambers, and regulatory resolutions of the Supreme Court of the Republic of Kazakhstan — from the date of their first official publication, unless other time limits are specified in the acts themselves;
- Resolutions of the Constitutional Council of the Republic of Kazakhstan — from the date of their adoption;
- Regulatory legal orders of ministers of the Republic of Kazakhstan and other heads of central state bodies and their departments, regulatory legal resolutions of the Central Election Commission of the Republic of Kazakhstan, the Accounts Committee for Control over the Execution of the Republican Budget of the Republic of Kazakhstan, the National Bank of the Republic of Kazakhstan and other central state bodies, regulatory legal decisions of maslikhats, regulatory legal resolutions of akimats, regulatory legal resolutions of audit commissions, and regulatory legal decisions of akims — upon the expiry of ten calendar days after the date of their first official publication, unless other time limits are specified in the acts themselves.
Regulatory legal acts or acts governing their entry into force may specify different dates for the entry into force of individual sections, subsections, paragraphs, chapters, articles, parts, clauses, subclauses and paragraphs of articles of regulatory legal acts than those established for the act as a whole (paragraph 4 of Article 42 of the Law).
The first criminal legislation in force in the Republic of Kazakhstan was the Criminal Code of 1997, which, however, was introduced into force on January 1, 1998, pursuant to the Law of the Republic of Kazakhstan dated July 16, 1997, “On the Introduction into Force of the Criminal Code of the Republic of Kazakhstan.” It was followed by the Criminal Code of 2014, which was introduced into force on January 1, 2015, pursuant to the Law of the Republic of Kazakhstan dated July 3, 2014, “On the Introduction into Force of the Criminal Code of the Republic of Kazakhstan.”
A criminal law or its individual provisions cease to have effect as a result of their repeal or replacement. Repeal of a criminal law occurs when it is abolished by a competent state body through the adoption of a separate law invalidating another law; through the issuance of a list of laws that have lost legal force in connection with the adoption of a new criminal law; through an express provision in the text of a new criminal law replacing the previous one that the previous law is repealed; or through a provision in the law governing the procedure for introducing the newly adopted criminal law into force. For example, the loss of legal force of the 1997 version of the Criminal Code of the Republic of Kazakhstan, as well as all laws that introduced amendments and additions to the 1997 Criminal Code of the Republic of Kazakhstan during the period from January 1, 1998, to December 31, 2014, was established in Article 2 of the Law “On the Introduction into Force of the Criminal Code of the Republic of Kazakhstan.”
The Constitutional Council of the Republic of Kazakhstan may declare a law unconstitutional. In such a case, the act or its individual provisions lose their legal force. Court judgments based on laws declared unconstitutional are subject to cancellation.
Replacement of a criminal law may take place when a new criminal law is adopted regulating the same public relations as the previous law. In this case, replacement may be carried out through a specific provision in the text of the new law repealing the previous regulatory act.
The application of a particular law depends on correctly determining the time when the criminal offense was committed. This issue arises in all cases where a certain period of time elapses between the criminal act (action or omission) and its results; where there is a time gap between the constituent elements of an act; where accomplices to the same criminal offense act at different times; as well as in cases involving the commission of continuing or continuous criminal offenses.
Determining the time when a criminal offense was committed depends on its nature and specific characteristics. The time of commission of a criminal offense shall be recognized as the time when the socially dangerous act (omission) was carried out, regardless of the time when the consequences occurred.
The offender's subjective attitude toward their conduct is determined by its social and legal assessment existing at the time the conduct was committed. This legislative approach to determining the time of commission of a criminal offense means that where an act is committed while the old law is in force, but the consequences of that act, which constitute a mandatory element of the criminal offense, occur while the new law is in force, the old law must be applied, provided that the old law is less severe in relation to the person who committed the criminal offense than the new law. This rule applies to all criminal offenses, regardless of their legal structure.
For example, before January 1, 2015, a criminal offense was committed for which liability was provided for under Article 282 of the 1997 Criminal Code of the Republic of Kazakhstan, “Air Pollution.” A mandatory element of the composition of this criminal offense is the occurrence of certain consequences — pollution or another alteration of the natural properties of the air, accompanied by the infliction of particularly large-scale damage. During the extraction of oil, LLP “N.” failed to comply with the rules governing the emission of pollutants into the atmosphere during the period from 2013 to 2014. The violations committed caused changes in the natural properties of the air in the locality, but these changes became apparent only after some time, already after the 2014 Criminal Code of the Republic of Kazakhstan had entered into force. Thus, the crime was completed during the period when the 2014 Criminal Code of the Republic of Kazakhstan was in force. Pursuant to the article under consideration, the time of commission of this crime should be considered the period during which the rules governing the emission of pollutants into the atmosphere were violated, that is, the said act should be considered to have been committed during the period when the 1997 Criminal Code of the Republic of Kazakhstan was in force.
In the theory of criminal law, the legal force of the so-called “intermediate” criminal law remains a controversial issue. This is a law that entered into force after a person committed a criminal offense and ceased to be in force before the criminal case was initiated and the offender was convicted. Based on decisions adopted in specific criminal cases, the following doctrinal rule was formulated: an intermediate law, regardless of whether it mitigates or increases the punishment, has no retroactive effect in any case, since it was in force neither at the time the criminal offense was committed nor at the time the criminal case was initiated and the person was convicted; only the laws in force at the time the act was committed and at the time the criminal case was initiated are subject to comparison.
In criminal law theory and practice, certain difficulties arise in determining the time of commission of continuous and continuing criminal offenses, as well as criminal offenses committed through complicity.
A continuous criminal offense is a criminal offense in which an act or omission is accompanied by the subsequent failure, over a more or less prolonged period, to perform duties imposed on the guilty person by law under the threat of criminal punishment (Article 139 of the Criminal Code, “Failure to Perform Obligations to Pay Maintenance for Children, Evasion of Payment of Maintenance for Disabled Parents and a Disabled Spouse,” Article 442 of the Criminal Code, “Desertion,” etc.).
A continuous criminal offense begins and constitutes a completed offense from the moment the first criminal act is committed or the criminal omission occurs.
Thus, for example, if a guilty person who has committed a continuous criminal offense (taking a hostage, unlawful possession of firearms, ammunition or explosive substances, evasion of serving a sentence of imprisonment, etc.) continues to perform acts (omissions) constituting the elements of these criminal offenses after a new, more severe law has entered into force, while the previous, less severe law was in force, that person must be held liable under the new law. Such criminal offenses are defined as continuous because their commission does not cease during the period when the new law is in force; the person remains continuously in a state of carrying out criminal acts (omissions) and is aware of this. If the person does not cease committing the criminal acts (omissions), or if they are not prevented before the new, more severe law enters into force, the person comes into conflict with the new law and is aware of this.
Such a criminal offense ends either as a result of an action by the guilty person aimed at terminating the criminal offense (for example, voluntary surrender and confession), or as a result of events preventing its further commission (for example, intervention by government authorities), or when the obligation whose non-performance constituted the substance of the continuous criminal offense ceases to exist. For example, upon the death of a child or a disabled parent, the guilty person's obligation to pay maintenance pursuant to a court decision ceases. In this case, liability for a continuous criminal offense arises under the criminal law provision that was in force at the time of the initial act of the infringement.
The issue of liability for continuing criminal offenses is resolved in a similar manner. Such criminal offenses consist of a series of separate identical acts directed toward achieving a single objective and infringing upon a single protected interest. For example, if the guilty person systematically tortured a victim and inflicted beatings on the victim for the last time during the period when a new, more severe law was in force, that person must be held liable under the criminal law provision that was in force at the time the criminal act was stopped or at the time the guilty person committed the last of those acts.
In cases of complicity in a criminal offense, the time of commission of the act should be considered the moment when each participant actually performed (or failed to perform) their legal role constituting complicity in the criminal offense.
When a crime is committed through complicity, it is considered completed from the moment the perpetrator carries out its objective elements. If a crime consists of two acts that, taken together, form the objective elements of the infringement, the act shall be assessed under the law that was in force at the time the last of those acts was committed. For example, where an organizer, instigator or accomplice performed the objective elements of a crime before January 1, 2015 (that is, before the 2014 Criminal Code entered into force), while the perpetrator acted after that date, the criminality and punishability of the actions of the perpetrator (as well as co-perpetrators) must be determined under the 2014 Criminal Code.
Different options are possible with regard to the other accomplices, depending on the extent to which they comply with the principles governing the operation of criminal law over time. If the new law eliminates the criminality and punishability of the relevant act, the newly adopted law shall apply.
Commentary on the Criminal Code of the Republic of Kazakhstan, 2021 edition, 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 Act Order Decision Resolution Lawyer Almaty Lawyer Legal Services Legal Consultation Civil Criminal Administrative Cases and Disputes Defense Arbitration Law Firm in Kazakhstan Law Office Court Cases Declaration Decree Order Resolution Decision Report Conclusion Application Conclusion Convention Contract Memorandum Methodology Rules Note Regulations Program Charter Charter Article Commentary Resolution Regulation Protocol Draft Program Regulations Addresses
