Commentary on Article 65. Exemption from Criminal Liability in Connection with Active Repentance under the Criminal Code of the Republic of Kazakhstan

1. A person who has committed a criminal misdemeanor or has committed a crime for the first time may be released from criminal liability, taking into account the personality of the offender, their voluntary surrender to the authorities, their assistance in the detection and investigation of the criminal offense, and their making amends for the harm caused by the criminal offense.

A person who has committed a corruption crime for the first time may be released from criminal liability in connection with active repentance only by a court.

2. The provisions of the first part of this Article shall not apply to persons who have committed a terrorist crime, an extremist crime, a crime committed as part of a criminal group, a crime against the sexual inviolability of minors, torture, or a serious or especially serious crime against the person, except in cases specifically provided for by the relevant articles of the Special Part of this Code. The said restriction shall not apply to minors who have committed a crime against the sexual inviolability of a minor person aged between fourteen and eighteen years.

Exemption from criminal liability means that competent state authorities, in an official act, decide to release a person who has committed a criminal offense from the obligation to be subjected to judicial conviction and to undergo measures of state coercive influence. Exemption from criminal liability means only the refusal to convict a person in the form of rendering a guilty verdict, but not a complete refusal of state condemnation of the criminal offense and the person guilty of committing it. Exemption by a court or another competent authority from criminal liability, which presupposes recognition of the fact that the relevant person committed a criminal offense, also constitutes evidence of state condemnation of both the criminal offense and the person who committed it.

Exemption from criminal liability in all its forms precludes not only the imposition of punishment but also the conviction of a person on behalf of the state. In the case of exemption from criminal liability, no guilty verdict is rendered, as is the case with exemption from criminal punishment, and the person is legally deemed not to have committed a criminal offense. Upon exemption from criminal liability, all measures of criminal procedural coercion (preventive measures, seizure of property), if applied, shall be revoked. The exempted person shall be returned any seized documents, belongings, etc.

The social significance of the institution of exemption from criminal liability lies in the fact that the state places its trust in a person who has committed a criminal offense and expects that person to behave lawfully in the future. It should once again be emphasized that exemption from criminal liability is not the rehabilitation of a person guilty of committing a criminal offense at that person's request (with the exception of amnesty). Exemption demonstrates that the state has shown leniency toward the person, given that the objectives of criminal legislation can be achieved without convicting the offender.

The basis of most forms of exemption from criminal liability is the so-called idea of compromise, according to which a person guilty of a criminal offense is guaranteed exemption from criminal liability or merely mitigation of punishment in exchange for performing acts required by law. An acceptable compromise between the offender and the state, and between the offender and the victim, can genuinely increase the social significance of criminal law.

The grounds for exemption from criminal liability in connection with active repentance consist of such conduct by a person after committing a criminal offense as demonstrates that the person regrets the act committed and condemns their own conduct. Such behavior most likely indicates a low degree of social danger posed by the person and an ongoing process of their correction.

The Article under commentary contains a list of grounds and conditions upon fulfillment of which a court, prosecutor, investigator, or inquiry body, with the consent of the prosecutor, is entitled to decide to exempt a person from criminal liability.

Exemption from criminal liability in connection with active repentance (Article 65 of the Criminal Code) is one of the forms of exemption from criminal liability of a person who has committed a criminal offense.

The grounds for exemption from criminal liability under Part 1 of Article 65 of the Criminal Code are:

commission of a criminal misdemeanor;

commission of a crime for the first time;

the personality of the offender;

voluntary surrender to the authorities, assistance in the detection and investigation of the criminal offense, and making amends for the harm caused by the criminal offense.

The absence of any of the above grounds precludes the application of this provision.

In accordance with Part 3 of Article 10 of the Criminal Code, a criminal misdemeanor is an act (action or omission) committed culpably, which does not pose a significant public danger, causes minor harm or creates a threat of harm to an individual, organization, society, or the state, and for which the following penalties are provided: a fine, correctional labor, community service, arrest, or expulsion from the Republic of Kazakhstan of a foreigner or stateless person.

It should be noted that, for exemption from criminal liability in connection with active repentance, the number of times a person has committed a criminal misdemeanor is irrelevant.

According to Part 2 of Article 10 of the Criminal Code, a crime is an act committed culpably and posing a public danger (action or omission), prohibited by the Criminal Code of the Republic of Kazakhstan under threat of punishment in the form of a fine, correctional labor, community service, restriction of liberty, imprisonment, or the death penalty.

Unlike Article 65 of the Criminal Code of 1997, which referred to a crime of minor or medium gravity committed for the first time, Article 65 of the Criminal Code of 2014 refers to a crime committed for the first time. Consequently, the legislator allows for the possibility of exemption from criminal liability in connection with active repentance for any crimes, regardless of their category, except for those specified in Part 2 of Article 65 of the Criminal Code.

According to Paragraph 4 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated June 21, 2001, “On Judicial Practice in Applying Article 68 of the Criminal Code of the Republic of Kazakhstan,” a crime committed for the first time should be understood as an act that a person actually commits for the first time, or an act committed not for the first time, provided that, in respect of the previously committed crime, the person was released from criminal liability in accordance with the procedure established by law, or was fully released from punishment, or their criminal record was expunged or removed (Article 79 of the Criminal Code).

A person who has committed two or more crimes (in cases of repeated offenses or actual concurrence of crimes) cannot, as a whole, be recognized as a person who has committed a crime for the first time. At the same time, with regard to the first episode of the charges, the person should be considered to have committed the crime for the first time.

A crime shall not be considered committed for the first time if the person has already been prosecuted for another crime, evades the investigation and trial, or has a criminal record in accordance with Article 79 of the Criminal Code.

Active repentance is understood as voluntary surrender to the authorities, assistance by the person in the detection and investigation of the criminal offense, and making amends for the harm caused by the criminal offense.

According to Part 1 of Article 182 of the Criminal Procedure Code, voluntary surrender to the authorities is a personal, voluntary, written or oral report by a person to a criminal prosecution authority concerning a criminal offense committed or being prepared by that person, where the person has not yet been recognized as a suspect or has not been detained on suspicion of committing that criminal offense.

An oral statement shall be accepted and recorded in a protocol in accordance with the procedure established by Part 2 of Article 181 of the Criminal Procedure Code. If, when voluntarily surrendering to the authorities, the applicant identifies accomplices in the criminal offense, the applicant shall be warned of criminal liability for knowingly making a false report under Article 419 of the Criminal Code (Part 3 of Article 182 of the Criminal Procedure Code).

A report concerning a criminal offense ceases to be voluntary and shall not be recognized as voluntary surrender to the authorities if it is made to an official of an investigative authority in connection with the person's detention as a suspect and the person confirms their involvement in the criminal offense committed. In such cases, the person's admission of guilt in committing the crime may be taken into account by the court as another mitigating circumstance under Part 2 of Article 53 of the Criminal Code or, where grounds exist, as active assistance in the detection and investigation of the crime.

Voluntary surrender to the authorities usually takes the form of a direct appeal by the person who committed the criminal offense to law enforcement agencies. However, if, for any reason, the person is unable to appear before the relevant authority to report the act committed (illness, injury, lack of available transport, etc.), it is assumed that the person may report the crime by telephone, telegram, letter, or through third parties.

The legislator attaches no legal significance to the motives for voluntary surrender to the authorities, which may be prompted by remorse, the desire to put an end to a criminal past, the desire to remove suspicion from an innocent person, and other reasons. Voluntary surrender to the authorities shall be deemed to have taken place when the investigative authorities do not know the identity of the person who committed the crime. Voluntary surrender to the authorities may take place both before the initiation of criminal proceedings, when the investigative authorities are unaware of the crime committed by the person, and after the initiation of criminal proceedings, during the investigation, within the limitation periods for bringing a person to criminal liability. It may serve as a condition for exemption from criminal liability only if the law enforcement authorities are not yet aware of the crime or of the applicant's involvement in it. A report by a person who was evading the investigation in connection with an accusation of committing a crime, was wanted by the authorities, and for some reason decided to stop evading the investigation and trial cannot serve as grounds for exemption from criminal liability.

The concept of “active repentance” must be distinguished from the concepts of “admission of guilt” and “repentance.”

An admission of guilt may be full or partial. A partial admission consists of a person admitting guilt only in respect of certain counts of the charges. A full admission is expressed in providing truthful testimony regarding all the circumstances of the crime, admitting guilt in respect of all counts of the charges, and may be accompanied by repentance. A full admission may be accompanied either by assistance to law enforcement authorities in detecting the crime and voluntary making of amends for the harm caused, or by neither of these actions. It may also be accompanied by voluntary surrender to the authorities. It should be taken into account that an admission of guilt may be made at any stage of criminal proceedings.

Repentance presupposes a full admission of one's guilt in respect of all counts of the charges and sincere regret for the act committed. Repentance may be accompanied by voluntary surrender to the authorities and may occur either before the initiation of criminal proceedings or at any stage of the criminal process.

Active repentance means not only a full admission of guilt in the crime committed and sincere regret for the act, but also the provision of assistance to law enforcement authorities. It cannot be ruled out that voluntary surrender to the authorities and active repentance may be interconnected and that a person who has surrendered themselves to justice fully admits their guilt and sincerely regrets the act committed.

Unlike voluntary renunciation of a criminal offense (Article 26 of the Criminal Code), which constitutes a circumstance excluding criminal liability for a criminal offense that was not completed by the person's own free will, active repentance after the commission of a criminal offense, as a general rule, does not exclude criminal liability but merely mitigates punishment. Therefore, active repentance acquires the significance of a circumstance releasing a person from criminal liability only when combined with certain conditions.

Another mandatory condition for exemption from criminal liability under Part 1 of Article 65 of the Criminal Code is the offender's assistance in the detection and investigation of the criminal offense. Assistance in detecting a criminal offense takes place when the pre-trial investigation authorities know nothing, or know very little, about the criminal offense, the circumstances of its commission, and the identity of the person who committed it.

Assistance in the detection and investigation of a criminal offense means cooperation with the investigative authorities in establishing all the circumstances of the act committed, exposing accomplices, providing instruments and means used to commit the crime, surrendering items obtained through criminal activity, participating in investigative actions, etc.

A condition for exemption from criminal liability under Part 1 of Article 65 of the Criminal Code is also making amends for the harm caused, which must be voluntary and initiated by the offender personally; it may take the form of restoring damaged property, repairing it, or providing monetary compensation. Not only material harm but also moral harm is subject to compensation. Monetary compensation for moral harm is also permitted, and physical harm may likewise be compensated in monetary form. Actions by an offender who negligently caused harm to the victim's health may also constitute signs of active repentance where the offender pays for the victim's treatment, enhanced nutrition, care, sanatorium treatment, and also provides financial assistance to the victim's family. Such actions combine elements of making amends for property damage and compensation for physical and moral harm.

Paragraph 5 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated June 21, 2001, “On Judicial Practice in Applying Article 68 of the Criminal Code of the Republic of Kazakhstan,” states: “The harm to be made good by a person who has committed a criminal offense should include any harm caused to the victim or applicant as a result of the criminal offense: moral, physical, and property-related harm. In doing so, not only direct but also indirect losses associated with the criminal offense must be taken into account, including expenses incurred in connection with participation in the preliminary investigation and court proceedings, including expenses for a representative.”

Making amends for harm may take the form of restoring damaged property, returning stolen property or providing equivalent property, paying monetary compensation, purchasing medicines, providing sanatorium and resort vouchers, apologizing to the victim or applicant, and other forms not prohibited by law.

“It is necessary to carefully establish exactly what harm was caused to the victim or applicant and whether it has been made good in full by the person who committed the criminal offense. Compensation for the harm caused must be sufficient from the perspective of the victim or applicant, rather than from the perspective of the person who committed the criminal offense.

Criminal prosecution authorities and the court shall not have the right to alter the requirements of the victim or applicant regarding the extent of the harm to be made good,” as stated in Paragraph 6 of the aforementioned Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan.

Making amends for harm may be carried out not only by the person who committed the criminal offense but also by other persons at that person's request (with that person's consent).

Promises and various obligations undertaken by a person who has committed a criminal offense to make amends for the harm in the future do not constitute circumstances providing grounds for exempting that person from criminal liability. According to Paragraph 3 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated November 27, 2015, “On the Application by Courts of Legislation on Compensation for Moral Harm,” moral harm means moral or physical suffering experienced by a citizen as a result of the unlawful violation, diminution, or deprivation of their personal non-property benefits and rights.

Thus, moral suffering includes feelings of humiliation, irritation, depression, anger, shame, despair, inferiority, a state of discomfort, etc. (see also Article 951 of the Civil Code).

According to Paragraph 7 of the aforementioned Resolution, moral harm, in accordance with the requirements of Article 952 of the Civil Code, shall be compensated in monetary form. In doing so, the court determines the amount of compensation based on the criteria of reasonableness and fairness. The amount of compensation for moral harm should be considered reasonable and fair if, in determining it, the circumstances relating to the violation of the citizen's personal non-property rights have been taken into account.

When determining the amount of compensation for moral harm, consideration is given both to the subjective assessment by the victim or, in the event of the victim's death as a result of the offense committed against them, by their close relatives or spouse, of the severity of the moral damage caused, and to objective data indicating the degree of moral and physical suffering experienced by the victim or, in the event of the victim's death, by their close relatives or spouse; the vital importance of the benefit that became the object of the infringement (life, health, honor, dignity, liberty, inviolability of the home, etc.); the severity of the consequences of the offense (the murder of close relatives, bodily injuries resulting in disability, deprivation of liberty, loss of employment or housing, etc.); the nature and scope of dissemination of false and defamatory information; the victim's living conditions (professional, family, domestic, financial, health status, age, and others); and other circumstances deserving attention (Part 2 of Article 952 of the Civil Code).

Moral harm shall be compensated regardless of the property damage subject to compensation (Part 3 of Article 952 of the Civil Code). The Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated July 9, 1997, “On the Practice of Applying Legislation on Compensation for Harm Caused by Unlawful Actions of Bodies Conducting Criminal Proceedings,” contains a list of possible unlawful actions by bodies conducting criminal proceedings.

Within the meaning of Part 1 of Article 65 of the Criminal Code, exemption from criminal liability in connection with active repentance requires the existence of the entire set of conditions specified in the Article under commentary, namely: voluntary surrender to the authorities, assistance in the detection and investigation of the criminal offense, and making amends for the harm caused as a result of committing the criminal offense.

Paragraph 16-1 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan “On Certain Issues of Sentencing” emphasizes: “The provisions of Part One of Article 65 of the Criminal Code shall apply to a person who has committed a criminal misdemeanor or a crime for the first time, as a rule, where the following circumstances exist together: the person's voluntary surrender to the authorities, documented in accordance with Article 182 of the Criminal Procedure Code; the person's assistance in the detection and investigation of the criminal offense; and the person's making amends for the harm caused by the criminal offense.”

It should be noted that these conditions set out in Part 1 of the Article under commentary overlap with similar circumstances specified in Subparagraphs 6) and 11) of Part 1 of Article 53 as circumstances mitigating criminal liability and punishment. Therefore, it is very important that pre-trial investigation authorities and courts correctly distinguish between them. Thus, in accordance with Subparagraph 11) of Part 1 of Article 53 of the Criminal Code, circumstances mitigating criminal liability and punishment include sincere repentance, voluntary surrender to the authorities, active assistance in detecting a criminal offense and exposing other accomplices to the criminal offense, and tracing property obtained as a result of the criminal offense. In Subparagraph 6) of Part 1 of Article 53 of the Criminal Code, the legislator classifies voluntary compensation for property damage caused as a result of a criminal offense, as well as making amends for moral and other harm caused by the criminal offense, as circumstances mitigating criminal liability and punishment.

As can be seen from the above-mentioned Subparagraphs 11) and 6) of Part 1 of Article 53 of the Criminal Code, “sincere repentance,” “voluntary surrender to the authorities,” “active assistance in detecting a criminal offense” (“investigation” is not mentioned in Subparagraph 11) of Part 1 of Article 53 of the Criminal Code, which, in our opinion, is an omission on the part of the legislator), and “making amends for moral and other harm” simultaneously constitute conditions for exemption from criminal liability provided for in Part 1 of Article 65 of the Criminal Code. A literal and logical interpretation of the wording of Article 65 of the Criminal Code leads to the conclusion that the totality of the conditions considered, contained in Part 1 of Article 65 of the Criminal Code, constitutes a single legal ground for exempting a person who has committed a criminal offense from criminal liability. Consequently, where these conditions exist individually (rather than cumulatively), reference should be made to Part 1 of Article 53 of the Criminal Code (Subparagraphs 11) or 6)). If voluntary surrender to the authorities is sufficient for it to be recognized as a mitigating circumstance, it is clearly insufficient for exemption from criminal liability within the meaning of Article 65 of the Criminal Code. A combination of conditions is required.

A situation cannot be ruled out in which the offender is unable to perform one of the actions specified in Part 1 of Article 65 of the Criminal Code due to objective circumstances beyond their control, while having performed the others.

In such a case, it would be erroneous not to recognize the possibility of terminating the criminal case against that person in connection with active repentance. For example, the accused assisted the investigator in detecting and investigating the criminal offense but was unable to voluntarily surrender to the authorities due to objective circumstances (force majeure) or was late in doing so, and the case was initiated on the basis of the victim's report. Another example is the absolute impossibility of making amends for the harm caused, even partially, due to a lack of financial resources. It is not appropriate to mechanically adhere to the position that all the conditions provided for in Article 65 of the Criminal Code must be established. In certain cases, it may happen that a person who has committed a criminal offense assists in its detection and investigation and wishes to make amends for the harm caused by the criminal offense, but the possibility of applying Article 65 of the Criminal Code is excluded because the person was unable to voluntarily surrender to the authorities. This cannot be considered justified or fair. Moreover, it directly contradicts the principal objectives of this form of exemption from criminal liability. At the same time, it should be borne in mind that this concerns a separate, specific criminal case. In general, however, as noted earlier, the totality of all the conditions provided for in Part 1 of Article 65 of the Criminal Code is mandatory for exempting a person from criminal liability in connection with active repentance.

As one of the conditions for exemption from criminal liability under Part 1 of Article 65 of the Criminal Code, the legislator provided for the need to take into account the personality of the offender. This raises the question: if a person who has committed a criminal misdemeanor or a crime for the first time has voluntarily surrendered to the authorities, assisted in the detection and investigation of the criminal offense, and made amends for the harm caused, does this not itself characterize the offender's personality?

Circumstances characterizing the offender's personality must be taken into account when imposing punishment. Thus, according to Part 3 of Article 52 of the Criminal Code, when imposing punishment, the nature and degree of public danger of the offense, the personality of the offender, including their conduct before and after the commission of the offense, circumstances mitigating and aggravating liability and punishment, as well as the effect of the punishment imposed on the correction of the convicted person and on the living conditions of their family or persons dependent on them, shall be taken into account. However, this is an entirely different institution — the institution of sentencing. Exemption from criminal liability in connection with active repentance (Article 65 of the Criminal Code) belongs to an independent institution — the institution of exemption from criminal liability and punishment. Voluntary surrender to the authorities, assistance in the detection and investigation of the criminal offense, and making amends for the harm caused already characterize the offender's personality in themselves. In this regard, singling out “taking into account the offender's personality” as a necessary condition for exemption from criminal liability under Article 65 of the Criminal Code appears to be unnecessary.

How, for example, can one explain the legislator's position in not specifying “taking into account the offender's personality” as a condition for exemption from criminal liability in other forms of exemption from criminal liability, such as cases of exemption from criminal liability for exceeding the limits of necessary defense (Article 66 of the Criminal Code); exemption from criminal liability upon fulfillment of the terms of a procedural agreement (Article 67 of the Criminal Code); exemption from criminal liability in connection with reconciliation (Article 68 of the Criminal Code); exemption from criminal punishment subject to the establishment of personal surety (Article 69 of the Criminal Code); exemption from criminal liability due to a change in circumstances (Article 70 of the Criminal Code); exemption from criminal liability due to the expiration of the limitation period (Article 71 of the Criminal Code). Moreover, the offender's personality does not affect many forms of exemption from punishment either: replacement of the unserved portion of a sentence with a more lenient type of punishment or reduction of the term of the imposed sentence (Article 73 of the Criminal Code); exemption from punishment and postponement of serving a sentence due to a confluence of difficult circumstances (Article 76 of the Criminal Code); exemption from serving a sentence due to the expiration of the limitation period for an accusatory judgment (Article 77 of the Criminal Code); exemption from criminal liability and punishment on the basis of an act of amnesty or pardon (Article 78 of the Criminal Code).

Finally, even if all the listed legal conditions are present, the law enforcement authority and the court are still entitled not to exempt the person from criminal liability — this follows directly from the wording in Part 1 that the person “may be released.”

This form of exemption from criminal liability is unconditional, final, and irreversible, since the person's exemption is not made dependent on their subsequent conduct and cannot be changed under any circumstances.

Whether or not to exempt a person from criminal liability in connection with active repentance, according to Part 1 of the Article under commentary, is a right rather than an obligation of the pre-trial investigation authorities and the court. At the same time, it should be noted that the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan “On Certain Issues of Imposing Criminal Punishment” contains a very important provision that should be supported. Thus, according to Paragraph 11 of the said Resolution: “With respect to persons who have committed a criminal misdemeanor or a crime for the first time, courts should consider the possibility of their correction without applying criminal punishment measures and, where the grounds specified in Articles 65, 66, 67, 68, 69, and 70 of the Criminal Code exist, release such persons from criminal liability and punishment.” The court's conclusion regarding the possibility of correcting a person without applying criminal punishment measures must be based on a comprehensive, complete, and objective examination of the circumstances of the case and information concerning the personality of the defendant.

I have previously expressed on numerous occasions the idea that it would be appropriate to replace the wording “may be” with “shall be subject to” in these articles, with the exception of Part 1 of Article 68 and Article 70 of the Criminal Code, since in those provisions the legislator specifically uses the wording “shall be released.”

According to Paragraph 12 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan “On the Court Judgment”: “In accordance with Part One of Article 36 of the Criminal Procedure Code, the court shall be entitled, by a ruling, to terminate proceedings in a case or to render a guilty verdict releasing the guilty person from criminal liability on non-exonerating grounds in connection with their active repentance, reconciliation with the victim, including through mediation, and making amends for the harm caused to the victim; exceeding the limits of necessary defense as a result of fear, fright, or confusion caused by a socially dangerous encroachment; or a minor's lagging behind in mental development unrelated to a mental disorder, that is, in cases provided for by Part 1 of Article 65, Article 66, Part 1 of Article 67, Parts 2 and 3 of Article 68, Part 1 of Article 83, Part 3 of Article 15 of the Criminal Code, and on other non-exonerating grounds for exemption from criminal liability expressly provided for in the General Part of the Criminal Code.

Non-exonerating grounds entailing the rendering of a guilty verdict with exemption from criminal liability also include the circumstances provided for in the notes to Articles 125, 175, 253 (Paragraph 1), 255, 261, 267, 287, 288, 296 (Paragraph 2), 347, 367 (Paragraph 2), 426, 442, 444, 445, 446, 447, and 453 of the Criminal Code.

In all these cases, where there is no dispute between the parties regarding the existence of circumstances giving rise to exemption from criminal liability, proceedings in the case shall be terminated by a ruling at the preliminary hearing stage or during the main court hearing pursuant to Subparagraph 12) of Part One of Article 35, Part One of Article 36, and Articles 327 and 343 of the Criminal Procedure Code.

A guilty verdict with exemption from criminal liability on the above-mentioned grounds shall be rendered only upon completion of the main court hearing in accordance with Part Five of Article 393 of the Criminal Procedure Code.”

By the Law of the Republic of Kazakhstan dated December 27, 2019, “On Amendments and Additions to Certain Legislative Acts of the Republic of Kazakhstan on Issues of Improving Criminal and Criminal Procedure Legislation and Strengthening the Protection of Individual Rights,” Part 1 of the Article under commentary was supplemented with a new paragraph reading as follows: “A person who has committed a corruption crime for the first time may be released from criminal liability in connection with active repentance only by a court.” The distinctive feature of this legislative innovation is that the legislator provides the possibility of exempting a person who has committed a corruption crime for the first time from criminal liability exclusively by a court.

In accordance with Paragraph 27-2 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated November 27, 2015, “On the Practice of Considering Certain Corruption Crimes,” a person who has committed a corruption crime for the first time, without being part of a criminal group, may, taking into account that the person voluntarily surrendered to the authorities, assisted in the detection and investigation of the criminal offense, made amends for the harm caused by the criminal offense, as well as the information concerning that person's personality, be released from criminal liability in connection with active repentance on the basis of Part 1 of Article 65 of the Criminal Code. A decision to this effect may be made only by a court.

According to Paragraph 16-1 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan “On Certain Issues of Sentencing,” at the pre-trial stage, the provision of Part 1 of Article 65 of the Criminal Code cannot be applied to a person who has committed a corruption crime.

The provisions of Part 1 of the Article under commentary do not apply to persons who have committed a terrorist crime, an extremist crime, a crime committed as part of a criminal group, a crime against the sexual inviolability of minors, torture, or a serious or especially serious crime against the person, except in cases specifically provided for by the relevant articles of the Special Part of the Criminal Code. The said restriction shall not apply to minors who have committed a crime against the sexual inviolability of a minor person aged between fourteen and eighteen years (Part 2 of Article 65 of the Criminal Code).

The exhaustive list of terrorist and extremist crimes, as well as the definitions of a criminal group and crimes against the sexual inviolability of minors, are contained in Article 3 of the Criminal Code (Subparagraphs 30), 39), 24), and 42)). Liability for torture is provided for in Article 146 of the Criminal Code, in Chapter 3, “Criminal Offenses against Constitutional and Other Rights and Freedoms of the Individual and Citizen.”

Serious and especially serious crimes against the person include acts for which liability is provided under Article 99, Part 3 of Article 105, Article 106, Part 2 of Article 110, Parts 2 and 3 of Article 116, Part 3 of Article 118, Article 120, Parts 2, 3, and 4 of Article 121, Parts 2 and 3 of Article 122, Article 124, Article 125, Part 3 of Article 126, Part 2 of Article 127, Parts 2, 3, and 4 of Article 128, and Parts 2 and 3 of Article 129 of the Criminal Code.

Exemption from criminal liability is provided for not only in the Article under commentary in the General Part of the Criminal Code but also in certain provisions of the Special Part of the Criminal Code.

Thus, of the 18 chapters of the Special Part of the Criminal Code, notes are provided in 11 (eleven) chapters: Chapters 1, 5, 8, 9, 10, 11, 14, 15, 16, 17, and 18; in seven chapters of the Special Part, notes to individual articles are not provided (Chapters 2, 3, 4, 6, 7, 12, and 13).

Under 37 Articles of the Criminal Code, a person is released from criminal liability, and under 8 of these Articles, such release is available if the person committed the crime for the first time.

Under 8 Articles, a person who has committed a crime may be released.

Under 6 of these 8 Articles, a person may be released from criminal liability on condition that the crime was committed for the first time.

Under 6 Articles, the possibility of exemption from criminal liability is provided where mitigating circumstances exist.

Three Articles state that a person shall not be subject to criminal liability.

One Article provides that imprisonment shall not be imposed.

Eight of the 37 Articles specify activity as a condition for exemption.

Exemption from criminal liability by chapter is provided for under the following Articles:

Chapter 1. Criminal Offenses against the Person

Article 118 “Infection with the Human Immunodeficiency Virus (HIV)” — release is granted;

Article 125 “Kidnapping” — release is granted;

Chapter 5. Criminal Offenses against the Foundations of the Constitutional Order and State Security

Article 175 “High Treason” — release is granted;

Article 176 “Espionage” — release is granted;

Article 179 “Propaganda or Public Calls for the Seizure or Retention of Power, as well as the Seizure or Retention of Power or the Violent Change of the Constitutional Order of the Republic of Kazakhstan” — release is granted;

Article 182 “Creation of, Leadership of, or Participation in the Activities of an Extremist Group” — release is granted;

Chapter 8. Criminal Offenses in the Sphere of Economic Activity

Article 214 “Illegal Entrepreneurship, Illegal Banking or Collection Activities” — release is granted (if the person committed the offense for the first time and voluntarily compensated for the damage);

Article 217 “Creation and Management of a Financial (Investment) Pyramid” — release is granted (if the person actively assisted in detecting or suppressing its activities);

Article 218 “Legalization (Laundering) of Money and (or) Other Property Obtained by Criminal Means” — release is granted (except for Parts 2 and 3);

Article 219 “Illegal Obtaining of a Loan or Misuse of Budgetary Funds” — release is granted (if the person committed the offense for the first time);

Article 221 “Monopolistic Activity” — release is granted (if the person committed the offense for the first time);

a) Article 222 “Illegal Use of a Trademark” — release is granted (if the person committed the offense for the first time);

Article 233 “Violation of the Procedure and Rules for Marking Excisable Goods with Excise Stamps and (or) Accounting and Control Stamps, Counterfeiting and Use of Excise Stamps and (or) Accounting and Control Stamps” — release is granted (if the person committed the offense for the first time);

Article 235 “Failure to Fulfill the Requirement of Repatriation of National and (or) Foreign Currency” — release is granted (if the person committed the offense for the first time);

Article 236 “Evasion of Payment of Customs Duties, Customs Fees, Taxes, Special, Anti-Dumping and Countervailing Duties” — release is granted (under Part 1);

Article 241 “Violation of the Legislation of the Republic of Kazakhstan on Accounting and Financial Reporting” — release is granted (if the person committed the offense for the first time);

Article 243 “Illegal Use of Bank Funds” — release is granted (if the person committed the offense for the first time);

Article 244 “Tax Evasion and (or) Evasion of Other Mandatory Payments to the Budget by Individuals” — release is granted;

Article 245 “Tax Evasion and (or) Evasion of Other Mandatory Payments to the Budget by Organizations” — release is granted;

Chapter 9. Criminal Offenses against the Interests of Service in Commercial and Other Organizations

Article 253 “Commercial Bribery” — release is granted under Parts 1 and 2 (if extortion took place);

Chapter 10. Criminal Offenses against Public Safety and Public Order

Article 255 “Act of Terrorism” — release is granted (to a person participating in the preparation of terrorism, if that person contributed to the prevention of the terrorist act);

Article 258 “Financing of Terrorist or Extremist Activities and Other Assistance to Terrorism or Extremism” — release is granted (if the person actively assists in detection or suppression);

Article 260 “Participation in Terrorist or Extremist Training” — release is granted;

Article 261 “Hostage-Taking” — release is granted;

Article 262 “Creation of and Leadership of an Organized Group or Criminal Organization, as well as Participation Therein” — release is granted (if the person actively assists...);

Article 263 “Creation of and Leadership of a Criminal Community, as well as Participation Therein” — release is granted (if the person actively assists...);

Article 264 “Creation of and Leadership of a Transnational Organized Group or Transnational Criminal Organization, as well as Participation Therein” — release is granted (if the person actively assisted...);

Article 265 “Creation of and Leadership of a Transnational Criminal Community, as well as Participation Therein” — release is granted (if the person actively assisted...);

Article 266 “Financing the Activities of a Criminal Group, as well as Storing and Distributing Property and Developing Financing Channels” — exemption (if under threat of violence);

Article 267 “Organization of an Illegal Paramilitary Formation” — release is granted;

10a) Article 268 “Banditry” — release is granted (if the person actively assisted...);

Article 287 “Illegal Acquisition, Transfer, Sale, Storage, Transportation, or Carrying of Weapons, Ammunition, Explosives, and Explosive Devices” — release is granted;

Article 288 “Illegal Manufacture of Weapons” — release is granted;

Chapter 11. Criminal Offenses against Public Health and Morality

Article 296 “Illegal Handling of Narcotic Drugs, Psychotropic Substances, Their Analogues, and Precursors without the Purpose of Sale” — release is granted (if the person actively assisted...);

Chapter 14. Transport-Related Criminal Offenses

Article 347 “Leaving the Scene of a Road Traffic Accident” — release is granted;

Chapter 15. Corruption and Criminal Offenses against the Interests of Public Service and Public Administration

Article 367 “Giving a Bribe” — release is granted (if extortion took place);

Chapter 16. Criminal Offenses against the Order of Governance

Article 375 “Encroachment on the Honor and Dignity of the President of the Republic of Kazakhstan and Obstruction of His Activities” — critical statements do not entail criminal liability;

Article 376 “Encroachment on the Honor and Dignity of a Member of the Parliament of the Republic of Kazakhstan and Obstruction of His Activities” — critical statements do not entail criminal liability;

Article 378 “Insulting a Representative of Authority” — critical statements do not entail criminal liability;

Article 387 “Evasion of Military Service” — release is granted;

Article 405 “Organization of and Participation in the Activities of a Public or Religious Association or Other Organization after a Court Decision Prohibiting Its Activities or Ordering Its Liquidation in Connection with the Commission of Extremism or Terrorism” — release is granted;

Chapter 17. Criminal Offenses against Justice and the Procedure for Execution of Sentences

Article 421 “Refusal of a Witness or Victim to Give Testimony” — the person shall not be subject to criminal liability for refusing to testify;

Article 426 “Escape from Places of Imprisonment, Arrest, or Custody” — release is granted;

Article 430 “Failure to Execute a Judgment, Court Decision, or Other Judicial Act or Enforcement Document” — imprisonment shall not be imposed (if the person repays the entire amount of the debt);

Article 432 “Harboring a Crime” — the person shall not be subject to criminal liability;

Article 434 “Failure to Report a Crime” — the person shall not be subject to criminal liability;

Chapter 18. Military Criminal Offenses

Article 441 “Unauthorized Absence from a Military Unit or Place of Service” — the person may be released;

Article 442 “Desertion” — the person may be released;

Article 444 “Violation of the Rules for Performing Combat Duty” — the person may be released (if the offense was committed for the first time and mitigating circumstances exist);

Article 445 “Violation of the Rules for Guarding the State Border of the Republic of Kazakhstan” — the person may be released (if the offense was committed for the first time and mitigating circumstances exist);

Article 446 “Violation of the Statutory Rules for Guard (Watch) Duty” — the person may be released from criminal liability (if the offense was committed for the first time and mitigating circumstances exist);

Article 447 “Violation of the Statutory Rules for Internal Service or Patrolling in a Garrison” — the person may be released (if the offense was committed for the first time or mitigating circumstances exist);

Article 448 “Violation of the Rules for Performing Controller Duty” — the person may be released (if the offense was committed for the first time and mitigating circumstances exist);

Article 453 “Negligent Attitude toward Service” — the person may be released (if the offense was committed for the first time and mitigating circumstances exist).

The said restriction provided for in Part 2 of the Article under commentary shall not apply to minors who have committed a crime against the sexual inviolability of a minor person aged between fourteen and eighteen years.

In accordance with Part 2 of Article 65 of the Criminal Code, in cases specifically provided for by the relevant articles of the Special Part of the Criminal Code, a person who has committed a crime of another category may also be released from criminal liability. The legislator guarantees a person who has committed the relevant crime exemption from criminal liability in exchange for certain positive post-criminal actions, the list of which is provided in the notes to the said Articles. At the same time, in these notes, the legislator does not require all the grounds and conditions specified in Part 1 of Article 65 of the Criminal Code to be fulfilled simultaneously, but instead requires the fulfillment of one or two of them or introduces new conditions or grounds. For example, in accordance with the note to Article 125 of the Criminal Code, voluntary release of the kidnapped person is sufficient for exemption from criminal liability for kidnapping. In other words, the grounds and conditions for exemption provided for in Part 1 of Article 65 of the Criminal Code are not mandatory in this case.

A person who voluntarily terminates participation in the activities of an extremist group shall be released from criminal liability if their actions do not contain the elements of another crime (note to Article 182 of the Criminal Code); that is, the mere fact of voluntarily terminating participation constitutes grounds for exemption from criminal liability.

The features of Part 1 of Article 65 of the Criminal Code are contained in the note to Article 217 of the Criminal Code, which provides for criminal liability for the creation and management of a financial (investment) pyramid: “A person, other than the organizer of a financial (investment) pyramid, who voluntarily reports their assistance in the creation of a financial (investment) pyramid or in managing it or its structural subdivision, and also actively assists in detecting or suppressing its activities, shall be released from criminal liability if their actions do not contain the elements of another crime.”

According to the note to Article 236 of the Criminal Code, a person who voluntarily pays the outstanding debt arising from non-payment of customs duties, customs fees, taxes, special, anti-dumping and countervailing duties, as well as penalties and interest where charged, and the amount of fines established by the legislation of the Republic of Kazakhstan, shall be released from criminal liability under Part 1 of Article 236 of the Criminal Code, if their actions do not contain the elements of another crime.

Exemption from criminal liability is permitted in the case of an act of terrorism (Article 255 of the Criminal Code). The note to this Article states that a person participating in the preparation of an act of terrorism shall be released from criminal liability if, by timely warning state authorities or by other means, the person contributed to the prevention of the act of terrorism and if their actions do not contain the elements of another crime. In this case, it should be regarded as voluntary renunciation of the commission of a crime rather than active repentance, since the crime is considered completed from the moment an explosion, arson, etc. is carried out. After such actions have been committed, the significance of active repentance is substantially reduced.

Article 261 of the Criminal Code provides for liability for hostage-taking. The note to this Article states that a person who voluntarily or at the demand of the authorities releases a hostage shall be released from criminal liability if their actions do not contain the elements of another crime. In this case, if the release of the hostage is carried out voluntarily, active repentance takes place; if it is carried out at the demand of the authorities, there is no active repentance.

Thus, it can confidently be stated that Article 65 of the Criminal Code is inconsistent with certain provisions of the Special Part of the Criminal Code. As can be seen from the analysis conducted, most of the notes to the Articles of the Special Part of the Criminal Code, firstly, do not require the existence of the conditions listed in Part 1 of Article 65 of the Criminal Code but provide for fundamentally different conditions. Secondly, in many notes, the legislator does not merely authorize but obliges the release of a person from criminal liability if that person fulfills all the conditions listed in the law.

Exemption from criminal liability for crimes under special notes to the relevant Articles of the Special Part of the Criminal Code shall be carried out in accordance with the rules established by such notes. In this case, fulfillment of the general conditions provided for in Part 1 of Article 65 of the Criminal Code is not required. The impossibility of applying a note does not preclude exemption from criminal liability under Part 1 of Article 65 of the Criminal Code if the person has fulfilled the conditions established by that provision.

Exemption from criminal liability and exemption from punishment have common features and differences. The common feature is that in both cases the guilty person ceases to be subjected to measures of state coercion provided for by the Criminal Code. Criminal liability and criminal punishment may be applied only to a guilty person, that is, where the elements of a criminal offense are present in that person's actions, and exemption both from criminal liability and from criminal punishment is possible only under specific conditions specified by law. The differences are as follows:

a person may be released from criminal liability at any stage of judicial proceedings (as an accused or defendant), whereas exemption from criminal punishment is possible only in respect of a person against whom a guilty verdict imposing punishment has been rendered;

in accordance with criminal procedure legislation, a person may be released from criminal liability not only by a court but also by a prosecutor, investigator, or inquiry body with the consent of the prosecutor (Articles 35 and 36 of the Criminal Procedure Code); a person may be released from punishment only by a court.

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 Worker of the Ministry of Internal Affairs of the Republic of Kazakhstan.

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