Commentary on Article 53. Circumstances Mitigating Criminal Liability and Punishment of the Criminal Code of the Republic of Kazakhstan
1. Circumstances mitigating criminal liability and punishment shall be recognized as follows:
a) commission of a minor offence for the first time as a result of a fortuitous combination of circumstances;
b) minority of the offender;
c) pregnancy;
d) the offender having young children;
e) provision of medical and other assistance to the victim immediately after the commission of the crime, voluntary compensation for property damage and moral harm caused as a result of the crime, and other actions aimed at making amends for the harm caused by the crime;
f) commission of a crime as a result of a combination of difficult personal, family or other circumstances, or out of compassion;
g) commission of a crime as a result of physical or psychological coercion, or due to material, official or other dependence;
h) commission of a crime in violation of the conditions of lawfulness of necessary defense, extreme necessity, detention of a person who has committed a crime, justified risk, or execution of an order or instruction;
i) the unlawfulness or immorality of the victim's conduct that served as a reason for the commission of the crime;
j) sincere repentance, voluntary surrender to law enforcement authorities, active assistance in the detection of the crime, exposure of other accomplices to the crime, and tracing of property obtained as a result of the crime.
2. When imposing punishment, circumstances not provided for in Part One of this Article may also be taken into account as mitigating circumstances.
3. If a mitigating circumstance is provided for in the relevant Article of the Special Part of this Code as an element of a crime, it may not, in itself, be taken into account again when imposing punishment.
4. Where the mitigating circumstances provided for in subparagraphs e) and j) of Part One of this Article are present and there are no aggravating circumstances, the term or amount of punishment for a minor or medium-gravity crime may not exceed one-half, for a serious crime — two-thirds, and for an especially serious crime — three-quarters of the maximum term or amount of the most severe type of punishment provided for by the relevant Article of the Special Part of this Code.
Article 53 of the Criminal Code of the Republic of Kazakhstan classifies the following as circumstances mitigating liability:
a) Commission of a minor offence for the first time as a result of a fortuitous combination of circumstances.
The law identifies three interrelated elements:
- a minor offence;
- such an offence is committed for the first time; this means that the person has not committed any other crime before, or, if the person has committed one and has served the imposed punishment, the criminal record for that offence has been expunged or extinguished;
- the crime is committed as a result of a fortuitous combination of circumstances.
These elements have mitigating significance because they indicate the absence of a persistent antisocial orientation in the offender and the absence of a connection between the crime committed and the offender's previous conduct and way of life.
b) Minority of the offender.
Minors are persons who have not reached the age of 18 at the time of committing a crime. Strict punishment measures should be applied to minors who commit crimes between the ages of 16 and 18. However, even in this case, the court must take these mitigating circumstances into account when imposing punishment (subparagraph "b" of Part 1 of Article 53 of the Criminal Code of the Republic of Kazakhstan).
c) Pregnancy.
Pregnancy can have a serious effect on a woman's psyche and, in a number of cases, may serve as one of the reasons for her antisocial conduct. Furthermore, by recognizing such a circumstance as mitigating, the legislator cannot disregard the protection of the interests of the unborn child.
d) The offender having young children.
Recognition of this circumstance as mitigating is обусловлено by concern for the young children of the offender. In each such case, the court must assess the significance of this circumstance when individualizing liability, as well as when deciding on the type and amount of punishment. The existence of such a circumstance may serve as grounds for imposing a more lenient punishment on the offender and for postponing the serving of punishment by women.
e) Provision of medical or other assistance to the victim immediately after the commission of the crime, voluntary compensation for property damage and moral harm caused as a result of the crime, and other actions aimed at making amends for the harm caused by the crime.
The law considers any actions aimed at making amends for the harm caused by a crime to be mitigating circumstances. Some of them are expressly specified in subparagraph "e" of Part 1 of Article 53 of the Criminal Code of the Republic of Kazakhstan. The existence of any of these circumstances indicates that the subject is aware of the harmful nature of their actions and wishes to reduce their guilt, which serves as grounds for mitigating liability.
Compensation for property damage or moral harm resulting from a crime acquires the character of a mitigating circumstance if it is made voluntarily by the offender, that is, of their own free will, without coercive influence exerted upon them by the bodies of inquiry, investigation or the prosecutor's office.
The provision of medical or other assistance to the victim, as well as voluntary compensation for property damage and moral harm, is possible only after the commission of the crime.
Factors involving full or partial redress of harm are significant when determining the specific punishment.
f) Commission of a crime as a result of a combination of difficult personal, family or other circumstances, or out of compassion (euthanasia).
The law provides an illustrative list of difficult circumstances that influence the commission of a crime. In practice, such circumstances usually include illness of the subject of the crime or close family members, temporary financial difficulties, a spouse's alcoholism, inadequate living conditions, etc. In certain cases, such circumstances may constitute a sufficient reason for persons with an unstable antisocial orientation to commit a crime.
Commission of a crime out of compassion refers to cases in which an act is committed out of pity or sympathy arising from another person's misfortune.
All the circumstances specified above may be recognized as mitigating if they existed before or during the commission of the crime and are causally connected with the act committed.
g) Commission of a crime as a result of physical or psychological coercion, or due to material, official or other dependence.
In this case, the law refers to both psychological and physical influence of any nature. It is important that such influence be capable of affecting a person's will. Most often, such influence is exerted through threats with the aim of inducing a person to commit a crime or participate in it.
One form of psychological coercion is a threat to kill, destroy property, etc. Coercion accompanied by physical influence upon the subject is, of course, more dangerous.
Courts recognize these circumstances as mitigating because, under such conditions, a person's freedom of action is restricted, and the initiator of the crime is the person applying the coercion. However, in certain cases involving irresistible physical coercion that deprives a person of any possibility of resisting the influence of another person, only the person who exerted the coercion should bear liability for the crime committed jointly.
Material dependence means dependence in the context of property relations. In this case, the offender's financial situation, their receipt of means of subsistence, as well as the amount and nature of such means, depend on another person. Other forms of dependence may include, for example, official or family dependence, and others.
h) Commission of a crime in violation of the conditions of lawfulness of necessary defense, extreme necessity, detention of a person who has committed a crime, justified risk, or execution of an order or instruction.
Although criminal liability is not eliminated when the conditions of lawfulness or the rules governing the exercise of a circumstance excluding the criminality of an act are violated, the actions of the subject in such situations are less dangerous, since their motive is to protect personal, public and state interests safeguarded by law against socially dangerous infringements. This may occur, for example, when the limits of necessary defense or extreme necessity are exceeded, when a criminal is detained, in cases of justified risk, or when an order or instruction is executed.
i) The unlawfulness or immorality of the victim's conduct that served as a reason for the commission of the crime.
Mitigation of criminal liability and punishment in such cases is обусловлено by the fact that the victims themselves are responsible for the commission of the crime, as their unlawful and immoral conduct (a spouse's infidelity, insulting actions, etc.) served as the reason for the crime.
j) Sincere repentance, voluntary surrender to law enforcement authorities, active assistance in the detection of the crime, exposure of other accomplices to the crime, and tracing of property obtained as a result of the crime.
Sincere repentance in itself indicates the beginning of the person's rehabilitation, the instability of the criminal's antisocial views and character traits, and a lower degree of danger to society. Sincere repentance is not merely an admission of guilt, but also genuine remorse and condemnation of one's own conduct.
Voluntary surrender to law enforcement authorities is closely connected with repentance. It means voluntarily appearing before law enforcement authorities and reporting the crime committed, while condemning one's own conduct despite being aware of the possibility of concealing oneself from the investigation and the court.
Active assistance in the detection of a crime, exposure of other accomplices to the crime, and tracing of property obtained as a result of the crime are also recognized as mitigating circumstances. Such assistance has mitigating significance when a person provides it actively and voluntarily, rather than under compulsion or pressure from evidence.
The list of mitigating circumstances set out above is not exhaustive. Therefore, when imposing punishment, other circumstances not specified in this list may also be recognized as mitigating circumstances.
In certain provisions of the Special Part, mitigating circumstances are specified as independent elements of a crime. In such cases, they are not taken into account again when imposing punishment. For example, the mitigating circumstances specified in subparagraph "h" of Article 53 of the Criminal Code of the Republic of Kazakhstan are not taken into account in cases of murder committed by exceeding the limits of necessary defense (Article 99 of the Criminal Code); murder committed by exceeding the measures necessary to detain the guilty person (Article 100 of the Criminal Code); infliction of grievous bodily harm by exceeding the limits of necessary defense (Article 109 of the Criminal Code), etc.
Where the mitigating circumstances provided for in subparagraphs "e" and "j" of Part 1 of Article 53 of the Criminal Code of the Republic of Kazakhstan are present and there are no aggravating circumstances, the term or amount of punishment for a minor or medium-gravity crime may not exceed one-half, for a serious crime — two-thirds, and for an especially serious crime — three-quarters of the maximum term or amount of the most severe type of punishment provided for by the relevant Article of the Special Part of this Code (Part 4 of Article 53 of the Criminal Code of the Republic of Kazakhstan).
Thus, the existence of the circumstances specified in Article 53 of the Criminal Code of the Republic of Kazakhstan indicates a lower degree of public danger posed by the guilty person and the crime committed by them, which gives grounds for mitigating the punishment imposed within the limits of the sanction of the Article under which the socially dangerous act is classified.
Commentary of 2007 to the Criminal Code of the Republic of Kazakhstan by I. Sh. Borchashvili, Honored Figure of Kazakhstan, Doctor of Law, Professor, Academician of the National Academy of Natural Sciences of Kazakhstan
Date of amendment of the act: 02.08.2007
Date of adoption of the act: 02.08.2007
Place of adoption: NONE
Body that adopted the act: 180000000000
Territorial scope of the act: 100000000000
Registration number of the normative legal act assigned by the rule-making body: 167
Status of the act: new
Scope of legal relations: 028000000000
Form of the act: COMMENTARY
Legal force: 1900
Language of the act: Russian
Criminal Code, Commentaries on the Criminal Code, Normative Resolution of the Supreme Court, Criminal Legislation, Normative Legal Acts of the Republic of Kazakhstan
