Commentary on Article 67. Exemption from Criminal Liability upon Fulfilment of the Terms of a Procedural Agreement of the Criminal Code of the Republic of Kazakhstan

1. A person who has fulfilled all the terms of a procedural agreement may be exempted from criminal liability.

2. The provision of Part One of this Article shall not apply to persons who have committed offences against the sexual inviolability of minors, except in cases where such an offence was committed by a minor against another minor aged between fourteen and eighteen years.

In accordance with subparagraph 37) of Article 7 of the Criminal Procedure Code (hereinafter referred to as the CPC), a procedural agreement is an agreement concluded between a prosecutor and a suspect, accused person or defendant at any stage of criminal proceedings, or with a convicted person, in accordance with the procedure and on the grounds provided for by the CPC.

Pursuant to Part 1 of Article 612 of the CPC, the investigation of criminal cases within the framework of a concluded procedural agreement is conducted:

in the form of a plea agreement — in cases involving criminal offences of minor or medium gravity, or serious crimes, where the suspect or accused person agrees with the suspicion or accusation;

in the form of a cooperation agreement — in all categories of crimes, where assistance is provided in the detection and investigation of crimes committed by a criminal group, particularly serious crimes committed by other persons, as well as extremist and terrorist crimes.

A plea agreement and a cooperation agreement are intended to facilitate the rational achievement of the objectives and purposes of criminal proceedings and also meet the needs and interests of persons who have committed crimes. At the same time, the volume of procedural work is substantially reduced.

A plea agreement is permitted in respect of crimes of minor or medium gravity, serious crimes, or a combination thereof. Consequently, a plea agreement is not permitted in cases involving criminal misdemeanours or particularly serious crimes. An essential condition for such an agreement is the consent of the suspect or accused person to the suspicion or accusation (subparagraph 1) of paragraph 1 of Article 612 of the CPC).

Unlike a plea agreement, the basis of a cooperation agreement is one of the forms of active repentance — providing assistance in the detection and investigation of crimes committed by a criminal group, particularly serious crimes committed by other persons, as well as extremist and terrorist crimes (subparagraph 2) of paragraph 1 of Article 612 of the CPC).

It should be borne in mind that a procedural agreement, regardless of its form, shall not be concluded with persons who committed an act prohibited by criminal law while in a state of insanity or who developed a mental disorder after committing the crime (Part 2 of Article 612 of the CPC).

The conclusion of a procedural agreement does not constitute grounds for exempting a person from civil liability towards persons recognised as victims and a civil claimant (Part 3 of Article 612 of the CPC).

A procedural agreement in the form of a plea agreement may be concluded if the following conditions are met:

the suspect or accused person voluntarily expresses a desire to conclude a procedural agreement;

the suspect or accused person does not dispute the suspicion, accusation, or the evidence available in the case concerning the commission of the crime, as well as the nature and amount of the damage caused by them. If these persons have substantiated objections regarding the relevance, admissibility, reliability and sufficiency of the evidence forming the basis of the suspicion or accusation, there can be no question of concluding an agreement in the case. A plea agreement may also not be concluded where the suspect or accused person disagrees with the nature and amount of the damage caused by them;

the victim consents to the conclusion of the procedural agreement. A plea agreement cannot be concluded without the victim's consent. If there are several victims in the case, the separate consent of each of them is required, and this must be duly recorded in the minutes of the relevant procedural or investigative action.

A procedural agreement in the form of a plea agreement is concluded between the prosecutor and a person who has committed a crime of minor or medium gravity or a serious crime, with the aim of ensuring a full and timely investigation of the crime. Within the framework of this agreement, the parties assume certain obligations that must be fulfilled within the established time limit. For example, these may include actions that the suspect or accused person undertakes to perform after the conclusion of the procedural agreement through their defence counsel. They have the right to withdraw from the procedural agreement until the court retires to the deliberation room to make its decision (Part 2 of Article 614 of the CPC).

A suspect or accused person has the right to submit a motion to conclude a procedural agreement in the form of a plea agreement at any time during the pre-trial proceedings in a criminal case. A procedural agreement may also be concluded at the initiative of the prosecutor (Part 1 of Article 615 of the CPC).

The conclusion of a plea agreement in cases involving criminal misdemeanours is not provided for by law. According to paragraph 5 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated 7 July 2016, “On the Practice of Consideration of Criminal Cases by Courts in Conciliation Proceedings”, where a person commits both a criminal misdemeanour and a crime in respect of which a plea agreement may be concluded, the pre-trial investigation body must not consolidate the cases, since proceedings concerning a criminal misdemeanour are conducted in the form of a pre-trial investigation protocol, whereas proceedings concerning a crime within the framework of a procedural agreement are conducted in accordance with the rules provided for in Chapter 63 of the CPC.

Where a person commits a criminal misdemeanour and a crime in respect of which a plea agreement has not been reached or concluded, the criminal cases may, in accordance with Part 4 of Article 526 of the CPC, be consolidated into a single proceeding in the form of an inquiry or preliminary investigation (paragraph 5 of the Regulatory Resolution of the Supreme Court).

A plea agreement must not contain a condition requiring the court to impose a specific type and amount of punishment on the defendant. At the same time, in accordance with subparagraph 8) of paragraph 1 of Article 616 of the CPC, it must specify the type and amount of punishment that the prosecutor will request the court to impose.

When concluding a plea agreement, the prosecutor is not entitled to make the suspect's or accused person's admission of guilt a condition for concluding the agreement. In accordance with subparagraph 2) of Article 613 of the CPC, it is sufficient for the plea agreement to state that the suspect or accused person does not dispute the suspicion, accusation, or the evidence available in the case concerning the commission of the crime, as well as the nature and amount of the damage caused by them.

If the plea agreement does not contain a condition regarding the imposition of compulsory medical measures on a convicted person recognised as requiring treatment for alcoholism, drug addiction or substance abuse, such a compulsory measure may not be imposed by the court on its own initiative. In this case, the court has the right, on the basis of subparagraph 3) of paragraph 1 of Article 623 of the CPC or subparagraph 2) of paragraph 1 of Article 626 of the CPC, to return the criminal case to the prosecutor for the conclusion of a new agreement (paragraph 16 of the Regulatory Resolution of the Supreme Court).

In accordance with paragraph 23 of the above-mentioned Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan, following the results of conciliation proceedings, the court has the right either to impose a less severe punishment on the convicted person than the type and amount of punishment requested by the prosecutor before the court in accordance with the plea agreement, or to return the case to the prosecutor due to disagreement with the type and amount of punishment specified in the procedural agreement, while providing an opportunity to conclude a new agreement.

Articles 618–621 of the CPC regulate matters relating to a cooperation agreement, which is the second form of procedural agreement specified in subparagraph 2) of paragraph 1 of Article 612 of the CPC. Thus, pursuant to subparagraph 2) of paragraph 1 of Article 612 and Article 619 of the CPC, a suspect, accused person, defendant and convicted person have the right to apply to the body conducting criminal proceedings or to the prosecutor with a motion to conclude a procedural cooperation agreement.

A procedural cooperation agreement with a suspect, accused person or defendant is approved by the prosecutor of the region or an equivalent prosecutor, or their deputies, respectively, whereas an agreement with a convicted person is approved by the Prosecutor General of the Republic of Kazakhstan or their deputy (Part 2 of Article 618 of the CPC).

A motion to conclude a procedural cooperation agreement may be submitted from the commencement of the pre-trial investigation up to and including the stage of execution of the sentence (Part 3 of Article 618 of the CPC).

In accordance with Article 619 of the CPC, “Procedure for Concluding a Procedural Cooperation Agreement”, a motion to conclude a procedural cooperation agreement shall be submitted by the suspect, accused person, defendant or convicted person in writing and must be endorsed by the signature of defence counsel (Part 1). If defence counsel has not been engaged by the suspect, accused person, defendant or convicted person personally, by their legal representative, or by other persons acting on their instructions, the participation of defence counsel shall be ensured by the body conducting criminal proceedings or by the institution or body executing the sentence (Part 2).

A procedural cooperation agreement is concluded between the prosecutor and the suspect, accused person, defendant or convicted person, with the participation of their defence counsel, in compliance with the requirements provided for in subparagraph 2) of paragraph 3 of Article 615, subparagraphs 1), 2), 3), 4), 5), 6) and 7) of paragraph 1, and paragraph 2 of Article 616 of the CPC. Where necessary, while maintaining its confidentiality in accordance with the rules of Article 47 of the CPC and ensuring security in accordance with Chapter 12 of the CPC, the agreement shall be submitted for approval to the prosecutor of the region or an equivalent prosecutor, or their deputies, respectively, and, in the case of an agreement with a convicted person, to the Prosecutor General of the Republic of Kazakhstan or their deputy (Part 6).

The prosecutor of the region or an equivalent prosecutor, or their deputies, in relation to a suspect, accused person or defendant, and the Prosecutor General of the Republic of Kazakhstan or their deputy, in relation to a convicted person, shall examine the procedural cooperation agreement submitted for approval and verify the legal and factual grounds for concluding the procedural cooperation agreement. In addition, they shall establish whether the persons who submitted the motion have been subjected to torture or other cruel, inhuman or degrading treatment or punishment, whether they concluded the procedural cooperation agreement voluntarily and whether they understand its legal consequences, as well as the circumstances of the case. Following the examination, they shall issue a resolution approving or refusing to approve the procedural cooperation agreement (Article 620 of the CPC).

If the procedural cooperation agreement is approved by the above-mentioned officials, the prosecutor who signed the procedural cooperation agreement shall immediately take measures to organise the detection of the crimes that constitute the subject matter of the agreement and the exposure of the persons responsible, and shall also consider whether it is necessary to cancel or modify the preventive measure imposed on the suspect or accused person in accordance with the procedure provided for in Article 153 of the CPC.

If, following the investigation of crimes falling within the subject matter of the procedural cooperation agreement, persons who committed particularly serious crimes, crimes as members of a criminal group, as well as extremist and terrorist crimes are exposed as a result of the assistance provided by the suspect, accused person, defendant or convicted person, and a guilty verdict is rendered in respect of the persons responsible, the prosecutor shall take measures to fulfil the terms of the procedural cooperation agreement.

In respect of a convicted person who has concluded a cooperation agreement and fulfilled its terms, the prosecutor shall apply to the court with a motion in accordance with Articles 476–478 of the CPC (Article 621 of the CPC). This legislative provision has also been incorporated into the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan. In particular, paragraph 30 of the Regulatory Resolution “On the Practice of Consideration of Criminal Cases by Courts in Conciliation Proceedings” emphasises: “Conciliation proceedings shall consider criminal cases submitted to the court with a procedural agreement in the form of a plea agreement, as well as cases in which a plea agreement was concluded during the main court hearing or during the consideration of the case in appellate proceedings.”

A case accompanied by a prosecutor's motion concerning a convicted person who has concluded a procedural cooperation agreement and fulfilled its terms cannot be considered in conciliation proceedings and shall instead be considered under the procedure for execution of the sentence in accordance with Articles 476, 477 and 478 of the CPC. Paragraph 25 of the same Resolution states that “the application of Article 67 of the Criminal Code of the Republic of Kazakhstan when considering a case in conciliation proceedings is inadmissible, since this provision applies only to a person who has concluded a procedural cooperation agreement, provided that they have fulfilled all the terms of the agreement”.

At the same time, it should be noted that difficulties will arise in law enforcement practice when distinguishing between certain types of exemption from criminal liability. In particular, this concerns the distinction between exemption from criminal liability in connection with active repentance (Article 65 of the Criminal Code) and exemption from criminal liability upon fulfilment of a procedural agreement (Article 67 of the Criminal Code), since the characteristics of repentance and assistance in the detection and investigation of crimes are inherent in both types of exemption from criminal liability.

A plea agreement (from the English term Plea bargain) is a written agreement permitted by law between the accused person and defence counsel, on the one hand, and the prosecutor, on the other, in which, often in exchange for the accused person's (defendant's) admission of guilt, the prosecutor waives a comprehensive examination of the circumstances of the case that could establish the truth, as well as the pursuit of charges for a more serious crime. Plea agreements exist in the United States, England and Wales, India, Italy, Russia, France, Estonia, Israel and Georgia.

There are similarities between the institution of active repentance and plea agreements: in Anglo-American law, the conclusion of such agreements is one of the forms of taking into account the positive post-criminal conduct of the accused person, that is, their active repentance.

There are also significant differences between these institutions. Active repentance is not a legal act that allows the parties (the prosecution and the defence) to dispose of the subject matter of the dispute; rather, it is a circumstance that reduces the degree of public danger posed by the act and the personality of the accused person, thereby allowing the relevant state authorities to discontinue their criminal prosecution. Exemption from criminal liability in this case is a manifestation of the state's humaneness.

Under the law, one of the conditions for recognising a person's active repentance is voluntary surrender to the authorities. In this regard, a person's “sincere confession” made after they have already been brought to criminal liability as a suspect or accused person is not recognised as voluntary surrender. Voluntary surrender is not required only where a person is exempted from liability on one of the special grounds provided for in the Special Part of the Criminal Code. Plea agreements, however, may be concluded at any time before a verdict is delivered in a criminal case, even if the accused person did not initially admit their guilt. In the science of criminal procedure, the view has been expressed that plea agreements are in fact associated with the state's abandonment of the establishment of objective truth in criminal proceedings. When concluding such agreements, the prosecutor and the accused person agree not to take into account the circumstances of the case established during the investigation and confirmed by evidence; in the case of active repentance, the opposite situation applies: the investigation must detect and correctly classify the crime, confirming all its circumstances with evidence, and guilt may be admitted only in full, without any elements of bargaining in this regard.

With regard to the purpose of introducing Article 67 of the Criminal Code, it should be noted that it is intended to establish a legal framework for combating organised crime, corruption, extremist and terrorist crimes, and for organising effective investigations of the most complex criminal cases.

Another difference between Article 65 of the Criminal Code and the admission of guilt within the meaning of Article 612 of the CPC is that Article 65 of the Criminal Code applies to a person who has committed a criminal misdemeanour or has committed a crime for the first time. In other words, the fact that the criminal offence was committed for the first time is a mandatory condition for exemption from criminal liability. For a plea agreement, committing a criminal offence for the first time is not a mandatory condition. It may have been committed repeatedly. Moreover, Article 65 of the Criminal Code applies to all categories of crimes, with the exception of the crimes specified in Part 2 of Article 65 of the Criminal Code. A plea agreement is concluded in respect of crimes of minor or medium gravity or serious crimes. Consequently, a plea agreement does not apply to criminal misdemeanours or particularly serious criminal offences. In addition, a plea agreement is concluded where the suspect or accused person agrees with the suspicion or accusation and the victim consents to the conclusion of the procedural agreement. These conditions do not apply to active repentance.

The distinction between Article 65 of the Criminal Code and Article 67 of the Criminal Code. In the case of active repentance, the issue concerns a person's assistance in the detection and investigation of a criminal offence committed by that person for the first time, whereas in the case of a cooperation agreement, it concerns all categories of crimes where assistance is provided in the detection and investigation of crimes committed by a criminal group, particularly serious crimes committed by other persons, as well as extremist and terrorist crimes.

Assistance in exposing and prosecuting other accomplices must be interpreted broadly: it includes not only accomplices to the crime imputed to the accused person, but also other persons whose criminal activities are known to the accused person.

It should be borne in mind that whereas active repentance is directed, as it were, inward, towards the subject matter of the criminal-law dispute, a cooperation agreement is directed both inward and, to an even greater extent, beyond the subject matter of the criminal-law relationship that arose between the accused person and the state following the commission of a criminal offence.

Whereas active repentance is confined to the boundaries of the act committed by the accused person themselves, a cooperation agreement is concluded primarily for the purpose of obtaining assistance in the detection and investigation of crimes committed by other accomplices to the criminal offence in question, as well as in the detection and investigation of crimes committed by other persons, including extremist and terrorist crimes. By virtue of the concluded cooperation agreement, criminal prosecution is directed not only, and not so much, against the accused person themselves, but also against other persons responsible.

Another independent area of cooperation may involve providing assistance in locating property obtained through criminal means, whether by the accused person themselves or by other persons. The difference between a cooperation agreement and active repentance or an admission of guilt lies in the fact that the accused person undertakes to perform positive post-criminal actions aimed at cooperating with law enforcement and special agencies in relation not only to the criminal offence imputed to them, but also to other criminal acts, while the state may apply more significant legal incentive measures in their favour.

In general, a person who has fulfilled all the terms of a procedural agreement, both in the form of a plea agreement and in the form of a cooperation agreement, may be exempted from criminal liability.

According to Part 2 of the commented Article, the provision of Part 1 of the Article shall not apply to persons who have committed crimes against the sexual inviolability of minors, except in cases where such a crime was committed by a minor against another minor aged between fourteen and eighteen years.

The list of crimes against the sexual inviolability of minors is set out in subparagraph 42) of Article 3 of the Criminal Code (see the commentary to Article 3 of the Criminal Code).

At the same time, the legislator allows for the possibility of exempting from criminal liability a person who has fulfilled all the terms of a procedural agreement (Part 1 of the commented Article) where a crime against the sexual inviolability of minors has been committed by a minor against another minor aged between fourteen and eighteen years.

2021 Commentary on the Criminal Code of the Republic of Kazakhstan by Isidor Shamilovich Borchashvili, Honoured 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, Honoured Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.

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