Commentary on Article 68. Exemption from Criminal Liability in Connection with Reconciliation of the Criminal Code of the Republic of Kazakhstan

A person who has committed a criminal misdemeanour or a minor or medium-gravity crime not associated with causing death shall be subject to exemption from criminal liability if such person has reconciled with the victim or applicant, including through mediation, and has made amends for the harm caused.

Minors, pregnant women, women having young children, men raising young children on their own, women aged fifty-eight years and older, and men aged sixty-three years and older who have committed a serious crime for the first time, which is not associated with causing death or serious harm to human health, may be exempted from criminal liability if they have reconciled with the victim or applicant, including through mediation, and have made amends for the harm caused. Upon exemption from criminal liability, compulsory educational measures shall be applied to a minor.

In cases where a criminal offence has caused harm to the interests of society and the State protected by law, a person referred to in Part One or Part Two of this Article may be exempted from criminal liability if such person has sincerely repented and made amends for the harm caused to the interests of society or the State protected by law.

The provisions of this Article shall not apply to persons who have committed:

torture;

crimes against the sexual inviolability of minors, except where such a crime is committed by a person who has not attained the age of majority against a minor aged between fourteen and eighteen years;

crimes committed through negligence that resulted in the death of a person or the death of two or more persons, except in cases involving a road traffic accident that negligently resulted in the death of the offender's close relatives or spouse;

a corruption-related crime;

a terrorist crime;

an extremist crime;

a crime committed as part of a criminal group;

an intentional crime within the limitation period for criminal prosecution established by Part One of Article 71 of this Code, following exemption from criminal liability in connection with reconciliation of the parties for a previously committed crime.

Reconciliation between a person who has committed a criminal offence and the victim can, in essence, be regarded as a form of active repentance. The idea of reconciliation makes it possible to resolve a conflict situation between the injured party and the person who committed the criminal act with lower procedural and moral costs. This is the first point. Secondly, the conflict that has arisen is resolved without punitive measures. Thirdly, restoration of the violated right is guaranteed at the discretion of the victim.

“Proper application of the institution of reconciliation between the parties,” states paragraph 1 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated 21 June 2001, “On Judicial Practice in the Application of Article 68 of the Criminal Code of the Republic of Kazakhstan,” “contributes to increasing the role and activity of the victim and applicant in criminal proceedings, ensuring full and prompt restoration of their violated rights and freedoms, and is simultaneously aimed at demonstrating humanism towards persons who have committed criminal offences and subsequently demonstrated positive conduct expressed in reconciliation with the victim or applicant and making amends for the harm caused.”

The body conducting criminal proceedings shall explain to the person who has committed a criminal offence, the victim and the applicant their right, grounds and procedure for reconciliation in accordance with Article 68 of the Criminal Code. The pre-trial investigation body shall explain to the victim and the suspect their right to reconciliation under Article 68 of the Criminal Code in the presence of the suspect's defence counsel, which shall be documented in a separate protocol.

Failure by the pre-trial investigation body to explain to the suspect and/or the victim their rights provided for in subparagraph 15) of paragraph 9 of Article 64 and subparagraph 8) of paragraph 6 of Article 71 of the Criminal Procedure Code, as well as its failure to apply the rules of Part One of Article 68 of the Criminal Code when the parties have consented to reconciliation, constitutes a substantial violation of the law. Upon establishing such violations, the court shall be obliged to bring them to the attention of the prosecutor by means of a separate ruling so that appropriate measures may be taken (paragraph 13, second paragraph, of the Regulatory Resolution of the Supreme Court).

If a party submits a motion to involve a mediator in the case for the purpose of reconciling the parties, the pre-trial investigation body shall not be entitled to refuse to grant such motion.

An agreement reached in the course of reconciliation, including through mediation, to compensate for harm in the future cannot be regarded as making amends for the harm caused to the victim and therefore cannot constitute grounds for applying Article 68 of the Criminal Code. The pre-trial investigation body must explain this to the suspect and the victim.

The minor and medium-gravity crimes referred to in Part One of Article 68 of the Criminal Code must not be associated with causing the death of one or more persons. In this regard, the form of guilt established in relation to the death of a person is irrelevant: whether intentional or negligent.

An obligatory condition for applying the Article under commentary is the absence of a causal link between the unlawful act of the perpetrator and the consequence in the form of a person's death. For this reason, exemption from criminal liability under Part One of Article 68 of the Criminal Code is impossible in respect of a person who has committed a crime for which liability is provided for under Parts 2 and 3 of Article 344, “Violation of the Rules for the Safety of Movement or Operation of Railway, Air, Sea or River Transport.” It is also impossible under Parts 2, 3 and 4 of Article 345, “Violation of Traffic Rules or the Rules for the Operation of Vehicles by Persons Driving Vehicles,” except in cases involving a road traffic accident that negligently resulted in the death of the offender's close relatives or spouse.

The application of Article 68 of the Criminal Code extends to persons who have committed a criminal misdemeanour or a minor or medium-gravity crime. When determining the categories of minor and medium-gravity crimes, it is necessary to be guided by the requirements of Parts 2 and 3 of Article 11 of the Criminal Code, and when determining a criminal misdemeanour, by Part 3 of Article 10 of the Criminal Code.

According to Part One of Article 68 of the Criminal Code, a person who has committed a criminal misdemeanour shall be subject to exemption from criminal liability if such person has made amends for the harm caused and has reconciled with the victim or applicant, or if reconciliation has taken place through mediation.

The provisions of Part One of Article 68 of the Criminal Code shall apply to persons who have committed minor and medium-gravity crimes where the following grounds exist in their entirety:

the criminally punishable act committed by the person falls within the category of minor or medium-gravity crimes and is not associated with causing death;

the person who committed the crime has reconciled with the victim or applicant, including through mediation;

the person who committed the crime has made amends for the harm caused to the victim or applicant by the crime.

In the absence of at least one of the listed grounds, the application of Part One of Article 68 of the Criminal Code shall be impermissible.

At the same time, it is irrelevant whether the person committed a criminal misdemeanour or a minor or medium-gravity crime for the first time or whether their actions involve repeated offences, an aggregate of crimes or recidivism; whether the person has served the sentence imposed by a previous judgment; or whether the new crime was committed while serving a sentence, during probationary supervision, during a deferral of execution of the judgment, or during the remaining unserved part of the sentence following conditional early release.

When applying the provisions of Part One of Article 68 of the Criminal Code, it should be taken into account that the grounds for termination specified in this Article do not apply to private prosecution cases. A special procedure for initiating and terminating cases in connection with reconciliation between the person who committed the crime and the victim is provided for in Parts 2 and 4 of Article 32 and subparagraphs 5) and 7) of paragraph 1 of Article 35 of the Criminal Procedure Code. Thus, pursuant to Part 2 of Article 32 of the Criminal Procedure Code, criminal offences provided for in Parts 1 and 2 of Article 114, Part 1 of Article 123, Article 131, Parts 1 and 2 of Article 147, Part 1 of Article 149, Part 1 of Article 150, Part 1 of Article 198, Part 1 of Article 199 and Part 1 of Article 321 of the Criminal Code, as well as Parts 1 and 2 of Article 152 of the Criminal Code, except for the case provided for in Part 3 of Article 32 of the Criminal Procedure Code, are classified as private prosecution cases. Proceedings in such cases may be initiated only upon a complaint by the victim and are subject to termination upon reconciliation between the victim and the accused or defendant.

The grounds for termination of a case specified in Article 68 of the Criminal Code also do not apply to Part 4 of Article 32 of the Criminal Procedure Code, which states: “The prosecutor shall initiate or continue proceedings in a private or private-public prosecution case even in the absence of a complaint by the victim if the act affects the interests of a person who is in a helpless or dependent state, or who, for other reasons, is unable to independently exercise the rights belonging to them, or in a private-public prosecution case affecting the interests of society or the State.”

The grounds specified in Part One of Article 68 of the Criminal Code also do not apply to cases involving criminal offences provided for in subparagraphs 5) and 7) of paragraph 1 of Article 35 of the Criminal Procedure Code. Thus, pursuant to subparagraph 5) of paragraph 1 of Article 35 of the Criminal Procedure Code, a criminal case shall be terminated due to the absence of a complaint by the victim in cases involving criminal offences provided for in Parts 2 and 3 of Article 32 of the Criminal Procedure Code, except for the cases provided for in Part 4 of Article 32 of the Criminal Procedure Code, as well as where a private prosecutor withdraws the charge in cases involving criminal offences provided for in Part 2 of Article 32 of the Criminal Procedure Code, except for the cases provided for in Part 4 of Article 32 of the Criminal Procedure Code, or where the head of a commercial or other organisation or an authorised body withdraws an application to bring a person to criminal liability.

In accordance with subparagraph 7) of paragraph 1 of Article 35 of the Criminal Procedure Code, a criminal case shall be terminated if there is a final court judgment against the person on the same charge or another unrevoked judicial ruling establishing the impossibility of criminal prosecution.

Under Part One of Article 68 of the Criminal Code, the legislator allows exemption from criminal liability through mediation, provided that all the conditions set out in its provisions are met. In accordance with subparagraph 5) of Article 2 of the Law of the Republic of Kazakhstan dated 28 January 2011, “On Mediation,” mediation is a procedure for resolving a dispute (conflict) between parties with the assistance of a mediator (mediators) for the purpose of reaching a mutually acceptable solution, implemented with the voluntary consent of the parties. The scope of application of mediation includes disputes (conflicts) arising from civil, labour, family and other legal relations involving individuals and/or legal entities, as well as disputes considered during criminal proceedings in cases involving criminal misdemeanours, minor and medium-gravity crimes, and serious crimes in the cases provided for in Part 2 of Article 68 of the Criminal Code, unless otherwise established by the laws of the Republic of Kazakhstan, and relations arising during the enforcement of enforcement proceedings (paragraph 1 of Article 1 of the said Law). The mediation procedure shall not apply to disputes (conflicts) arising from civil, labour, family and other legal relations involving individuals and/or legal entities where one of the parties is a state body (paragraph 3 of Article 1 of the said Law).

The mediation procedure shall not apply to criminal cases involving corruption-related crimes and other crimes against the interests of public service and public administration (paragraph 4 of Article 1 of the said Law).

A mediator is an independent individual engaged by the parties to conduct mediation on a professional or non-professional basis in accordance with the requirements of subparagraph 2) of Article 2 of the Law of the Republic of Kazakhstan “On Mediation,” as well as Part 1 of Article 85 of the Criminal Procedure Code. Persons who have reached the age of forty and are included in the register of non-professional mediators may carry out mediator activities on a non-professional basis (paragraph 3 of Article 9 of the Law “On Mediation”). Persons who have higher education, have reached the age of twenty, hold a document (certificate) confirming completion of training under a mediator training programme approved in accordance with the procedure determined by the Government of the Republic of Kazakhstan, and are included in the register of professional mediators may carry out mediator activities on a professional basis (paragraph 4 of Article 9 of the Law).

The objectives of mediation are:

Achieving a solution to the dispute (conflict) that satisfies both parties to the mediation;

Reducing the level of conflict between the parties (Article 3 of the Law).

Mediation shall be conducted on the basis of the following principles:

voluntariness;

equality of the parties to the mediation;

independence and impartiality of the mediator;

inadmissibility of interference in the mediation procedure;

confidentiality (Article 4 of the Law).

The following persons may not act as mediators:

a person authorised to perform state functions or a person equated thereto;

a person declared legally incapable or partially capable by a court in accordance with the procedure established by law;

a person against whom criminal prosecution is being carried out;

a person whose conviction has not been expunged or removed in accordance with the procedure established by law (paragraph 7 of Article 9 of the Law).

Additional requirements for a mediator may be established by agreement of the parties to the mediation (paragraph 8 of Article 9 of the Law).

Alongside mediators carrying out their activities on a non-professional basis, mediation may also be conducted by members of the local community elected for these purposes by a meeting (gathering) of the local community, provided that they have extensive life experience, authority and an impeccable reputation (paragraph 1 of Article 15 of the Law).

According to Part 2 of Article 85 of the Criminal Procedure Code, a mediator shall have the right to:

1) familiarise themselves with information provided to the parties to the mediation by the body conducting criminal proceedings;

2) familiarise themselves with data concerning participants in criminal proceedings who are parties to the mediation;

3) meet privately and confidentially with participants in criminal proceedings who are parties to the mediation, without restrictions on the number or duration of meetings, in accordance with criminal procedural law;

4) assist the parties in concluding agreements to achieve reconciliation through mediation.

A mediator shall be obliged to:

1) act only with the consent of the parties to the mediation when conducting mediation;

2) explain to the parties, before the commencement of mediation, the concept and objectives of mediation, as well as their rights and obligations;

3) not disclose information that has become known to them in connection with the mediation procedure (Part 3 of Article 85 of the Criminal Procedure Code).

With the consent of the parties, a mediator may conduct the mediation procedure from the moment an application or notification concerning a criminal offence is registered and at subsequent stages of the criminal proceedings until the judgment enters into legal force (Part 4 of Article 85 of the Criminal Procedure Code).

Mediation conducted during criminal proceedings, unlike mediation in the sphere of civil, labour, family and other legal relations involving individuals and/or legal entities, has its own specific features, which are as follows (Article 24 of the Law):

Conclusion by the parties of a mediation agreement shall not suspend proceedings in the criminal case;

The fact of participation in mediation may not serve as evidence of an admission of guilt by a participant in the proceedings who is a party to the mediation;

If one of the parties to the mediation is a minor, the participation of a teacher or psychologist or the minor's legal representatives shall be mandatory;

Mediation during criminal proceedings must be completed within the time limits established by criminal procedural law for pre-trial and judicial proceedings;

Refusal to sign an agreement on settlement of the conflict may not worsen the position of a participant in the proceedings who is a party to the mediation;

Upon termination of mediation conducted within the framework of criminal proceedings, the parties shall immediately send to the body conducting criminal proceedings, in whose proceedings the criminal case is pending:

1) in the event that an agreement on settlement of the conflict has been signed — the said agreement;

2) in other cases — written notification of the termination of mediation, indicating the grounds provided for in Article 26 of the Law “On Mediation.”

According to Article 26 of the Law of the Republic of Kazakhstan “On Mediation,” mediation shall be terminated in the following cases:

the parties sign an agreement on settlement of the dispute (conflict) — from the date of signing such agreement;

the mediator establishes circumstances that exclude the possibility of resolving the dispute (conflict) through mediation;

the parties submit a written refusal to proceed with mediation due to the impossibility of resolving the dispute (conflict) through mediation — from the date on which the parties sign the written refusal;

one of the parties submits a written refusal to continue mediation — from the date on which the mediator sends the written refusal;

expiry of the period for conducting mediation — from the date of its expiry, taking into account the provisions of Articles 23–24 of the Law of the Republic of Kazakhstan “On Mediation.”

An agreement on settlement of a conflict reached by the parties during mediation conducted in the course of criminal proceedings constitutes an agreement on settlement of the conflict by making amends for the harm caused to the victim and reconciling the person who committed the criminal offence with the victim (paragraph 6 of Article 27 of the Law). The said agreement shall be immediately sent to the body conducting criminal proceedings in whose proceedings the criminal case is pending and, in the cases provided for in Article 35 of the Criminal Procedure Code, shall constitute a circumstance precluding proceedings in the case or allowing criminal prosecution not to be carried out. The agreement on settlement of the conflict shall enter into force on the day it is signed by the parties.

Under Part 2 of Article 68 of the Criminal Code, unlike Part 1 of Article 68 of the Criminal Code, minors, pregnant women, women having young children, men raising young children on their own, women aged fifty-eight years and older, and men aged sixty-three years and older who have committed a serious crime for the first time, which is not associated with causing death or serious harm to human health, shall not be subject to mandatory exemption from criminal liability but may be exempted from criminal liability if they have reconciled with the victim or applicant, including through mediation, and have made amends for the harm caused.

Part 2 of Article 68 of the Criminal Code shall apply where the following grounds exist:

a specific category of persons — minors, pregnant women, women having young children, men raising young children on their own, women aged fifty-eight years and older, and men aged sixty-three years and older;

such persons have committed for the first time a serious crime that is not associated with causing death or serious harm to human health;

the person who committed the crime has reconciled with the victim or applicant, including through mediation;

the person who committed the crime has made amends for the harm caused to the victim or applicant.

In the absence of at least one of the listed grounds, the application of Part 2 of Article 68 of the Criminal Code shall be impermissible.

Where a minor is exempted from criminal liability for committing a serious crime that is not associated with causing death or serious harm to human health, compulsory educational measures shall be applied to that minor.

The concept of “for the first time” applies only to the commission of serious crimes. Consequently, if persons specified in Part 2 of Article 68 of the Criminal Code previously committed minor or medium-gravity crimes and subsequently committed a serious crime that is not associated with causing death or serious harm to health, they may, provided that the other conditions are met, be exempted from criminal liability under Part 2 of Article 68 of the Criminal Code, regardless of whether they were previously convicted of minor or medium-gravity crimes or exempted from criminal liability and punishment.

When deciding whether to apply Part 2 of Article 68 of the Criminal Code to a person who has committed a serious crime that is not associated with causing death or serious harm to health, a crime committed for the first time should be understood, as stated in paragraph 4 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan “On Judicial Practice in the Application of Article 68 of the Criminal Code of the Republic of Kazakhstan,” 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 exempted from punishment, or the conviction was expunged or removed (Article 79 of the Criminal Code).

A person who has committed two or more crimes (in cases of repeated offences or a real aggregate of crimes) cannot, as a whole, be recognised as a person who has committed a crime for the first time. At the same time, in respect of the first episode of the charge, the person should be considered to have committed the crime for the first time.

The harm that a person who has committed a criminal offence must make amends for includes any harm caused to the victim or applicant by the criminal offence: moral, physical and property damage. In this regard, not only direct losses but also indirect losses related to the criminal offence must be taken into account, including expenses incurred in connection with participation in the preliminary investigation and in court, 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 or health-resort vouchers, apologising to the victim or applicant, and other forms not prohibited by law.

It is necessary to carefully establish precisely what harm was caused to the victim or applicant and whether that harm has been made good in full by the person who committed the criminal offence.

Compensation for the harm caused must be sufficient from the perspective of the victim or applicant, rather than the person who committed the criminal offence. Criminal prosecution authorities and the court shall not be entitled to alter the demands of the victim or applicant regarding the amount of harm to be made good. If there is a dispute between the parties concerning the amount of compensation for harm, this indicates that reconciliation has not taken place and, consequently, the person who committed the criminal offence shall not be subject to exemption from criminal liability under Article 68 of the Criminal Code.

Making amends for harm must be real and must precede the reconciliation of the parties and the adoption of a decision to exempt the person who committed the criminal offence from criminal liability. For the purposes of applying Article 68 of the Criminal Code, it is irrelevant who made amends for the harm: the person who committed the criminal offence personally or, at that person's request, relatives, other persons or organisations.

Promises, as well as various obligations undertaken by the person who committed the criminal offence to make amends for the harm in the future, regardless of whether that person has an objective ability to fulfil them, do not constitute circumstances that provide grounds for exemption from criminal liability. A victim's or applicant's voluntary waiver of claims against the person who committed the criminal offence for making amends for the harm cannot be regarded as a failure by that person to fulfil the obligation to make amends for such harm and cannot prevent reconciliation between the parties.

Reconciliation is expressed through a request by the victim or applicant to terminate the criminal case initiated against the person who committed the criminal offence. The victim's expression of will shall be formalised in a written application or recorded in the victim's interrogation protocols at the preliminary investigation stage or in the minutes of the court hearing.

Where the victim or applicant submits a motion to mitigate the punishment of the accused (defendant) due to the absence of financial claims against them, the body conducting criminal proceedings shall be obliged to establish whether reconciliation has taken place between the person who committed the criminal offence and the victim or applicant and whether other grounds necessary for applying Article 68 of the Criminal Code exist.

Reconciliation must take place voluntarily at the victim's own will and must not be forced or brought about by threats from the perpetrator or other persons acting in the perpetrator's interests. If threats or violence against the victim are established, the body conducting criminal proceedings or the court shall be obliged to take measures to ensure the victim's safety as provided for in Articles 96, 97 and 98 of the Criminal Procedure Code and the Law of the Republic of Kazakhstan dated 5 July 2000, “On State Protection of Persons Participating in Criminal Proceedings.”

Paragraph 8 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan “On Judicial Practice in the Application of Article 68 of the Criminal Code of the Republic of Kazakhstan” states:

“The fact that the victim or applicant has voluntarily and freely expressed their will when exercising their right to reconciliation forms part of the subject matter of proof in the case. An application for reconciliation submitted by the victim or applicant under coercion by any person shall not constitute grounds for exempting the person who committed the criminal offence from criminal liability.

The participation of other persons (relatives, friends, colleagues, representatives of state organisations or public associations, etc.) in the procedure, with the consent of the parties, does not in itself exclude the voluntariness and freedom of the victim's or applicant's expression of will in exercising their right to reconciliation.

Criminal prosecution authorities and courts shall not participate in the process of reconciliation between the parties for any purpose whatsoever; they shall only explain to the victim, applicant and person who committed the criminal offence their right, grounds and procedure for reconciliation.”

Criminal prosecution authorities and courts must strictly comply with the requirements of the law when granting a person victim status and eliminate from practice cases involving both unjustified refusals to recognise a person as a victim and unlawful granting of victim rights to a person who is not, in fact, a victim.

In accordance with Article 71 of the Criminal Procedure Code, a victim may be either an individual or a legal entity. Criminal prosecution authorities and courts must verify the authority of a representative of a legal entity participating in the case as the representative of the victim to reconcile with the person who committed the crime. Such authority must be reflected in the power of attorney issued for participation in the case.

According to Part 1 of Article 71 of the Criminal Procedure Code, a person in respect of whom there are grounds to believe that they have suffered direct moral, physical or property damage as a result of a criminal offence shall be recognised as a victim in criminal proceedings. A person shall be recognised as a victim in criminal proceedings after the relevant ruling has been issued.

According to Part 12 of Article 71 of the Criminal Procedure Code, a legal entity that has suffered property damage as a result of a criminal offence may be recognised as a victim. In this case, the rights and obligations of the victim shall be exercised by the representative of the legal entity.

Exemption of a person from criminal liability in connection with reconciliation under Parts 1 and 2 of Article 68 of the Criminal Code shall be permitted only where there is a victim (an individual or legal entity) or an applicant.

Reconciliation between a person who has committed a criminal offence and a minor victim (aged between 14 and 18) or a victim recognised as having limited legal capacity shall be possible only with the consent of the victim's legal representative.

The range of persons who may act as legal representatives is defined in subparagraph 13) of Article 7 of the Criminal Procedure Code and shall not be subject to broad interpretation.

In accordance with the law, the rule provided for in Part 1 of Article 68 of the Criminal Code is mandatory for criminal prosecution authorities and the court where the combination of grounds specified therein for exempting a person from criminal liability exists. Such exemption is not precluded even in cases where, in addition to minor or medium-gravity crimes, the person has committed a serious or particularly serious crime, provided that reconciliation with the victims has taken place in respect of the minor and medium-gravity crimes. In this case, proceedings in respect of the serious or particularly serious crime shall continue in accordance with the Criminal Procedure Code of the Republic of Kazakhstan.

The grounds for exemption from criminal liability in accordance with Part 3 of Article 68 of the Criminal Code are:

the act committed constitutes a criminal misdemeanour or falls within the category of minor or medium-gravity crimes not associated with causing death, or it has been committed by a person belonging to the category specified in Part 2 of Article 68 of the Criminal Code who has committed for the first time a serious crime that is not associated with causing death or serious harm to human health;

harm has been caused to the interests of society and the State protected by law;

the person who committed the crime has sincerely repented and made amends for the harm caused to the interests of society or the State protected by law.

Reconciliation may take place before the initiation of a criminal case, during pre-trial investigation or while the criminal case is being considered by the court, but before the court (judge) retires to the deliberation room to deliver the judgment.

Paragraph 18 of the above-mentioned Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated 21 June 2001 states that an application for reconciliation may be submitted only at the stages of inquiry, preliminary investigation, and before the courts of first instance and appellate instance. Where the combination of grounds provided for by law for exempting a person from criminal liability in connection with reconciliation with the victim or applicant exists, the criminal prosecution body and the court shall be obliged to consider the issue of reconciliation.

In a court of cassation, exemption from criminal liability under Article 68 of the Criminal Code shall be permissible only where the circumstances providing grounds for applying Article 68 of the Criminal Code were established in the court of first instance or appellate court, but the court unlawfully or unjustifiably failed to apply this law (paragraph 19 of the said Regulatory Resolution of the Supreme Court).

In accordance with Part 4 of Article 68 of the Criminal Code, exemption from criminal liability in connection with reconciliation shall not be permitted in respect of persons who have committed the following offences:

torture;

crimes against the sexual inviolability of minors, except where such a crime is committed by a person who has not attained the age of majority against a minor aged between fourteen and eighteen years;

crimes committed through negligence that resulted in the death of a person or the death of two or more persons, except in cases involving a road traffic accident that negligently resulted in the death of the offender's close relatives or spouse;

a corruption-related crime;

a terrorist crime;

an extremist crime;

a crime committed as part of a criminal group;

an intentional crime within the limitation period for criminal prosecution established by Part 1 of Article 71 of the Criminal Code, following exemption from criminal liability in connection with reconciliation of the parties for a previously committed crime.

Criminal liability for torture is provided for in Article 146 of Chapter 3, “Criminal Offences Against the Constitutional and Other Rights and Freedoms of the Individual and Citizen.”

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).

It should be noted that where the crimes specified in subparagraph 42) of Article 3 of the Criminal Code are committed by a person who has not attained the age of majority against a minor aged between fourteen and eighteen years, that person may be exempted from criminal liability in connection with reconciliation with the victim in accordance with Article 68 of the Criminal Code.

Crimes committed through negligence that resulted in the death of a person or the death of two or more persons include crimes for which liability is provided for in Article 104, “Causing Death by Negligence”; Parts 2 or 3 of Article 344, “Violation of the Rules for the Movement or Operation of Railway, Air, Sea or River Transport”; Parts 3 or 4 of Article 345, “Violation of Traffic Rules or the Rules for the Operation of Vehicles by Persons Driving Vehicles”; Parts 3 or 4 of Article 348, “Poor-Quality Repair of Vehicles or Their Release into Operation with Technical Defects”; Parts 2 or 3 of Article 351, “Violation of Rules Ensuring Safe Operation of Transport”; and a number of other provisions of the Special Part of the Criminal Code. Where a person commits a road traffic accident that negligently results in the death of their close relatives, the provisions of Article 68 of the Criminal Code shall apply to that person. The victim's close relatives include their parents, children, adoptive parents, adopted children, full and half-brothers and sisters, grandfather, grandmother and grandchildren. This list of persons, contained in subparagraph 11) of Article 7 of the Criminal Procedure Code, is exhaustive and shall not be subject to broad interpretation.

For corruption-related, terrorist and extremist crimes and crimes committed as part of a criminal group, see the commentary to subparagraphs 29), 30), 39) and 24) of Article 3 of the Criminal Code.

The provisions of Article 68 of the Criminal Code also do not apply to persons who commit an intentional crime within the limitation period for criminal prosecution established by Part 1 of Article 71 of the Criminal Code after having been exempted from criminal liability in connection with reconciliation of the parties for a previously committed crime.

By virtue of the requirements of Part 3 of Article 6 of the Criminal Code, “Retroactive Effect of Criminal Law,” the provisions of subparagraph 8) of Part 4 of Article 68 of the Criminal Code apply only to persons who were previously exempted from criminal liability in connection with reconciliation of the parties for a crime committed after 10 January 2020.

The application of the legal provisions set out in Part 1 of Article 68 is mandatory for criminal prosecution authorities and courts where the combination of grounds specified therein for exempting a person from criminal liability exists.

The application of the legal provisions set out in Parts 2 and 3 of Article 68 of the Criminal Code is not mandatory (it is discretionary).

When applying these legal provisions, it is necessary to take into account, alongside the position of the victims and applicants, the nature and degree of public danger of the act; information characterising the person who committed the criminal offence; the consequences resulting from the criminal offence; and other significant circumstances of the case.

The law permits the application of Article 68 of the Criminal Code in cases involving crimes that simultaneously infringe upon two or more protected interests (for example, hooliganism, etc.). In this category of cases, the body conducting criminal proceedings is obliged, in accordance with the law, to recognise as victims all persons (including legal entities) who have directly suffered moral, physical or property damage as a result of the crime. If reconciliation has not been achieved with at least one of the victims, the person who committed the crime shall not be exempted from criminal liability under Article 68 of the Criminal Code.

In accordance with Part 1 of Article 36 of the Criminal Procedure Code, where grounds for applying Article 68 exist in the cases provided for in Part 1 of Article 65, Articles 66 and 67, Parts 2 and 3 of Article 68, Part 1 of Article 69, Parts 1 and 3 of Article 83, as well as the notes to Articles 441, 442, 444, 445, 446, 447, 448 and 453 of the Criminal Code, the court shall be entitled to terminate the criminal case or deliver a guilty verdict exempting the person who committed the crime from criminal liability.

The termination of a criminal case on the grounds of Article 68 of the Criminal Code is classified by law as exemption from criminal liability on non-exonerating grounds. Before terminating the case, the person who committed the crime and the victim or applicant must be informed of the legal consequences of terminating the case on this ground and of their right to object to termination on this ground. The victim and applicant must also be informed that, after the case has been terminated under Article 68 of the Criminal Code, they shall not be entitled to raise the issue of resuming criminal prosecution against the same person on the same charge.

In accordance with Part 5 of Article 36 of the Criminal Procedure Code, termination of a case shall not be permitted if the suspect, accused or victim or applicant objects to it. In such a case, proceedings in the case shall continue in the ordinary manner.

A ruling on termination of a criminal case issued by criminal prosecution authorities or by a court, as well as a judgment, must comply with the general requirements imposed by law on such procedural documents (respectively, Parts 2, 3 and 4 of Article 288 and Articles 327, 344, 395, 396, 397, 398 and 401 of the Criminal Procedure Code). In addition, it must contain a legal assessment of the act indicating the category of the crime according to its degree of gravity, record the voluntary nature of the reconciliation that has taken place, specify precisely how the harm caused has been made good, and, in cases where Part 2 of Article 68 of the Criminal Code is applied to a person who has committed a serious crime not associated with causing death or serious harm to human health, also confirm that the person committed this crime for the first time.

According to paragraph 26 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan “On the Practice of Consideration of Criminal Cases by Courts in Conciliatory Proceedings,” where the circumstances provided for in Part 1 of Article 68 of the Criminal Code are established during conciliatory proceedings, the court shall, in accordance with subparagraph 12) of paragraph 1 of Article 35 of the Criminal Procedure Code and subparagraph 4) of paragraph 1 of Article 626 of the Criminal Procedure Code, issue a ruling terminating proceedings in the criminal case in connection with reconciliation. Following consideration of an agreement on admission of guilt in conciliatory proceedings, the court shall not be permitted to issue a ruling terminating the case on the grounds provided for in Article 36 of the Criminal Procedure Code and Parts 2 and 3 of Article 68 of the Criminal Code. In this case, the court shall be entitled to deliver a guilty verdict exempting the person from criminal liability or to return the criminal case to the prosecutor.

In concluding the commentary to this Article, I would like to draw attention to two very important issues concerning the position of the Supreme Court of the Republic of Kazakhstan.

First. Paragraph 13-1 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan “On Judicial Practice in the Application of Article 68 of the Criminal Code of the Republic of Kazakhstan” states: “The application of the legal provisions provided for in Parts Two, Three and Four of Article 68 of the Criminal Code is not mandatory (it is discretionary).” This position of the Supreme Court of the Republic of Kazakhstan corresponds to the content of Parts 2, 3 and 4 of Article 68 of the Criminal Code. At the same time, the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan “On Certain Issues of Sentencing” emphasises that “In respect of persons who have committed a criminal misdemeanour or committed a crime for the first time, courts should consider the possibility of their rehabilitation without applying criminal punishment measures and, where the grounds specified in Articles 65, 66, 67, 68 and 70 of the Criminal Code exist, exempt such persons from criminal liability and punishment” (paragraph 11). In my opinion, the inconsistent position of the Supreme Court of the Republic of Kazakhstan in its different regulatory resolutions on one and the same issue will not contribute to the development of a uniform position in judicial and investigative practice. Apparently, the Supreme Court will determine its final position on this issue. I support the position established in the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated 25 June 2015.

Second. The Supreme Court of the Republic of Kazakhstan should exclude paragraph 13-2 from the Regulatory Resolution “On Judicial Practice in the Application of Article 68 of the Criminal Code of the Republic of Kazakhstan” as being contrary to criminal legislation. In particular, paragraph 13-2 states: “The application of Article 68 of the Criminal Code, with termination of proceedings in part of the case, is also possible where there is an aggregate or repetition of crimes, in respect of those crimes and episodes for which reconciliation has been achieved.” At the same time, proceedings in respect of crimes for which reconciliation has not been achieved or for which reconciliation is not permitted by law shall continue in accordance with the Criminal Procedure Code.

In cases where a crime is committed through complicity, Article 68 of the Criminal Code may be applied only in respect of those persons who have reconciled with the victim or applicant. Proceedings in respect of accomplices who have not achieved reconciliation with the victim or applicant shall continue in accordance with the Criminal Procedure Code.

Commentary of 2021 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 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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