Commentary on Article 70. Exemption from Criminal Liability in Connection with a Change in Circumstances of the Criminal Code of the Republic of Kazakhstan

A person who has committed a criminal offence shall be subject to exemption from criminal liability by a court if it is established that, by the time the case is considered by the court, as a result of a change in circumstances, the act committed by that person has ceased to be socially dangerous.

A person who has committed a criminal misdemeanour for the first time or who has committed a minor or medium-gravity crime for the first time shall be subject to exemption from criminal liability by a court if it is established that, as a result of subsequent exemplary conduct, by the time the case is considered by the court, that person can no longer be considered socially dangerous.

The article of the Criminal Code of the Republic of Kazakhstan under consideration sets out two independent, although very similar, grounds for exemption from criminal liability: the cessation of the social danger of the committed act as a result of a change in circumstances, and the loss of social dangerousness of a person who has committed a criminal misdemeanour for the first time or a minor or medium-gravity crime for the first time, as a result of subsequent exemplary conduct.

It should be noted that the legislator does not link the application of Part 1 of the article under consideration to the category of the criminal offence. The central consideration here is that a person who has committed a criminal offence shall be subject to exemption from criminal liability by a court if it is established that, by the time the case is considered by the court, as a result of a change in circumstances, the act committed by that person has ceased to be socially dangerous.

When deciding on exemption from criminal liability, pursuant to Part 1 of Article 70 of the Criminal Code, it is necessary to establish precisely how the change in circumstances manifested itself and why it resulted in the loss of the social danger of the committed act.

A change in circumstances should be understood as substantial changes in objective social conditions under which not only specific acts, but also all other similar acts, lose their social dangerousness.

A change in circumstances may also consist in the disappearance of special conditions relating to the place and time of the commission of acts that give them a criminal character. For example, catching valuable species of fish in prohibited areas cannot be considered a criminal offence if, under conditions of food shortages, their population has increased excessively and is on the verge of mass extinction, and if, taking this into account, fishing in such areas was subsequently officially authorised. In such cases, the application of criminal punishment becomes inappropriate.

The act provided for in Part 1 of the article under consideration is similar to the acts referred to in Part 4 of Article 10 of the Criminal Code. They differ in that Part 4 of Article 10 of the Criminal Code does not recognise as a criminal offence an act or omission which, although formally containing the elements of an act provided for in the Special Part of the Criminal Code, does not pose a social danger due to its insignificance. The act referred to in Part 1 of the article under consideration, however, was initially recognised as socially dangerous and only ceased to be considered such as a result of a change in circumstances.

Unlike Part 1 of the article under consideration, Part 2 of Article 70 of the Criminal Code establishes the absence of social dangerousness of the person themselves who has committed a criminal misdemeanour for the first time or a minor or medium-gravity crime for the first time as the grounds for exemption from criminal liability. Thus, exemption may occur only under the following circumstances:

the person has committed a criminal misdemeanour for the first time;

the person has committed a minor or medium-gravity crime for the first time;

as a result of subsequent exemplary conduct, by the time the case is considered by the court, that person can no longer be considered socially dangerous.

With regard to the loss of social dangerousness of a person who has committed a criminal offence, a change in circumstances applies to the conditions of that person's life, comparing them with the past and the present at the time when the issue of exemption from criminal liability is being decided. This may be expressed, for example, in the relocation of a minor to another area where the negative influence of the surrounding environment, which is criminogenic in nature, is eliminated. In any event, a change in circumstances in such cases must break the combination of causes and conditions that led to the commission of the criminal offence by that person.

This type of exemption from criminal liability has one characteristic feature that distinguishes it from Articles 68 and 69 of the Criminal Code. For exemption from criminal liability under Article 68 of the Criminal Code and from punishment under Article 69 of the Criminal Code, it is necessary that the minor or medium-gravity crimes committed were not associated with causing death (Article 68 of the Criminal Code) or causing death or grievous bodily harm (Article 69 of the Criminal Code). As for Part 2 of Article 70 of the Criminal Code, the commission of a minor or medium-gravity crime is not linked to the occurrence of death or grievous bodily harm for the purposes of exemption from criminal liability.

In cases of exemption from criminal liability due to the loss of the social dangerousness of the offender's personality, changes may occur either at the offender's own initiative (for example, transferring to a job that is not associated with a source of increased danger or material liability, if the criminal act was previously connected with a violation of transport safety rules or the misappropriation of another person's property), or independently of the offender's will (dismissal of the person from employment, conscription into the army, etc.).

Exemption from criminal liability in connection with a change in circumstances is unconditional; it is not linked to the person's subsequent conduct, does not provide for the imposition of any obligations on the person and cannot be revoked. Furthermore, based on the wording of the current Article 70 of the Criminal Code, which states that a person who has committed a criminal offence shall be subject to exemption from criminal liability by a court if it is established that, by the time the case is considered by the court, as a result of a change in circumstances, the act committed by that person has ceased to be socially dangerous (Part 1 of the article under consideration), and that a person who has committed a criminal misdemeanour for the first time or a minor or medium-gravity crime for the first time shall be subject to exemption from criminal liability by a court if it is established that, as a result of subsequent exemplary conduct, by the time the case is considered by the court, that person can no longer be considered socially dangerous (Part 2 of the article under consideration), it should be concluded that the court has not merely the right, but the obligation to exempt the person from criminal liability where the specified grounds are present.

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 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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