Commentary on Article 71. Exemption from Criminal Liability Due to the Expiration of the Limitation Period of the Criminal Code of the Republic of Kazakhstan
1. A person shall be exempted from criminal liability if the following periods have elapsed from the date of commission of the criminal offense:
1) one year after the commission of a criminal misdemeanor;
2) two years after the commission of a minor offense;
3) five years after the commission of an offense of medium gravity;
4) ten years after the commission of a serious offense, a minor or medium-gravity corruption offense;
5) fifteen years after the commission of an especially serious offense.
2. The limitation periods shall be calculated from the date of commission of the criminal offense until the moment the court judgment enters into legal force.
3. The running of limitation periods for criminal misdemeanors shall neither be suspended nor interrupted, regardless of the commission of a new criminal offense.
4. The running of limitation periods shall be suspended if the person who committed the offense evades the investigation or the court. In this case, the running of the limitation period shall resume from the moment the person is detained or voluntarily appears and confesses. At the same time, a person may not be brought to criminal liability if, from the time of commission of the offense, the limitation period has not been interrupted and the following periods have elapsed:
1) five years after the commission of a minor offense;
2) ten years after the commission of an offense of medium gravity;
3) fifteen years after the commission of a serious offense, a minor or medium-gravity corruption offense;
4) twenty years after the commission of an especially serious offense.
5. The running of the limitation period shall be interrupted if, before the expiration of the periods specified in paragraph one of this Article, a person who has committed a serious or especially serious offense commits a new serious or especially serious offense. In such cases, the calculation of the limitation period shall begin anew from the date of commission of the new offense. In other cases, if a person commits another offense before the expiration of the limitation period, the limitation period for each offense shall run independently.
6. The issue of applying the limitation period to a person who has committed an offense for which the death penalty or life imprisonment may be imposed under this Code shall be decided by the court. If the court does not consider it possible to exempt the person from criminal liability due to the expiration of the limitation period, the death penalty shall be replaced with life imprisonment, and life imprisonment shall be replaced with imprisonment for a term of twenty-five years.
7. Limitation periods shall not apply to persons who have committed crimes against the peace and security of humanity, terrorist crimes, extremist crimes, torture, crimes against the sexual inviolability of minors, as well as especially serious crimes against the individual, the foundations of the constitutional order and state security, public safety and public order.
The limitation period for bringing a person to criminal liability is understood as the expiration of certain periods from the date of commission of a criminal offense, which, subject to the conditions established by law, exempts the person from criminal liability.
The less time that passes between the commission of a criminal offense and the imposition of punishment, the more effective its impact generally is. Conversely, punishing a person a significant period of time after the commission of a crime generally becomes inappropriate from the standpoint of achieving the purposes of punishment (Article 39 of the Criminal Code).
It is also of certain importance that, over time, the investigation of a crime becomes more difficult; in a number of cases, evidence is lost or loses its probative value, and information known to witnesses is forgotten or distorted in their memory. Therefore, in many cases, proper consideration of a case by a court becomes difficult or even impossible.
The Article under consideration regulates the issues of exempting from criminal liability persons who, for various reasons, were not brought to criminal liability and convicted in a timely manner. If a person who committed a criminal offense remained outside the attention of the relevant authorities for a lengthy period, did not go into hiding and did not commit new criminal offenses, the necessity of bringing that person to criminal liability eventually ceases to exist. The need to apply the Article under consideration most often arises due to the failure of law enforcement and special authorities to timely establish the fact of commission of a criminal offense and identify the person who committed it, that is, when a criminal offense remains undisclosed for a long period of time.
An analysis of the Article under consideration leads to the conclusion that there are two types of limitation periods:
a differentiated period established in Part 1 of the Article under consideration, the duration of which depends on the gravity of the criminal offense committed;
a differentiated period established in Part 4 of the Article under consideration for persons who, after committing a criminal offense, have absconded from the investigation and the court.
The expiration of the limitation period for bringing a person to criminal liability is not an exonerating circumstance; however, the state considers it possible to exempt a person from criminal liability if the periods provided for in Article 71 of the Criminal Code have elapsed.
Limitation periods are differentiated depending on the category (gravity) of the criminal offense committed, rather than on the nature of the harm caused or the term (amount) of the punishment imposed.
According to Article 71 of the Criminal Code, a person shall be exempted from criminal liability if the following periods have elapsed from the date of commission of the criminal offense:
one year after the commission of a criminal misdemeanor;
two years after the commission of a minor offense;
five years after the commission of an offense of medium gravity;
ten years after the commission of a serious offense, a minor or medium-gravity corruption offense;
- fifteen years after the commission of an especially serious offense.
When calculating the limitation periods for exemption from criminal liability, the current Criminal Code establishes that the initial point for calculating the limitation period is the date of commission of the criminal offense, while the final point is the moment the court judgment enters into legal force (Part 2 of Article 71 of the Criminal Code).
In the case of a continuing criminal offense, the limitation period begins at the moment the criminal offense is terminated — voluntary surrender, detention of the offender, and other circumstances. In the case of a continued offense consisting of several episodes, the beginning of the limitation period should be considered the commission of the last episode constituting a link in the continued criminal offense.
Where a person's conduct involves a concurrence of crimes belonging to different categories, the limitation period for each crime may differ in duration.
If criminal legislation is amended in the direction of mitigating punishment for a particular crime, the new law shall be taken into account when calculating the limitation period. If the new law increases the punishment, the limitation period shall be calculated under the old law.
In the theory of criminal law, the issue of the final moment of the limitation period is resolved differently: some authors consider this to be the day on which a person is charged as an accused, others consider it to be the day the judgment is rendered, while others consider it to be the day the judgment enters into legal force. The Criminal Code of the Republic of Kazakhstan clearly states: “The limitation period shall be calculated ... until the moment the court judgment enters into legal force” (Part 2 of Article 71 of the Criminal Code). This provision of the Criminal Code of the Republic of Kazakhstan is based on Article 77 of the Constitution of the Republic of Kazakhstan, subparagraph 1) of paragraph 3 of which establishes that “...a person shall be presumed innocent of committing a crime until his or her guilt is established by a court judgment that has entered into legal force.” Consequently, the moment of bringing a person to criminal liability is also the day on which the court judgment enters into legal force, rather than the day on which the person is charged as an accused or the day on which the court renders its judgment.
The running of limitation periods for criminal misdemeanors shall neither be suspended nor interrupted, regardless of the commission of a new criminal offense (Part 3 of Article 71 of the Criminal Code). In this regard, it does not matter whether the person who committed the misdemeanor evaded the investigation or the court, and this is also independent of whether that person commits a new crime. For example, in 2017, a person committed a criminal misdemeanor; during the pre-trial investigation, the person evaded the criminal prosecution authorities and, while being wanted, committed a robbery under Part 2 of Article 191 of the Criminal Code in 2018. By the time the criminal case was considered in court, more than one year had elapsed. The court will be obliged to exempt the person from criminal liability for the committed criminal misdemeanor due to the expiration of the limitation period and convict the person only for the robbery.
The expiration of the limitation period excludes criminal liability only on the condition that the running of the limitation period has not been disrupted. The running of limitation periods shall be suspended for the entire period during which the person who committed the criminal offense evades the investigation or the court, until that person is detained or voluntarily appears and confesses (Part 4 of Article 71 of the Criminal Code). From that moment, the running of the limitation period shall resume. A person may not be brought to criminal liability if, from the time of commission of the offense, the limitation period has not been interrupted and the following periods have elapsed:
five years after the commission of a minor offense;
ten years after the commission of an offense of medium gravity;
fifteen years after the commission of a serious offense, a minor or medium-gravity corruption offense;
twenty years after the commission of an especially serious offense.
When the running of the limitation period is suspended, the portion of the period that has already elapsed does not lose its significance; it is added to the period whose running resumes from the moment the person who has absconded is detained or voluntarily appears and confesses. For example, a crime was committed in 2017; one year later, the offender absconded from the investigation and was detained two years later, that is, in 2020. In this case, the running of the limitation period is suspended from 2018 to 2020, for the period during which the offender evaded the investigation, and the one-year limitation period that elapsed from the moment of commission of the crime resumes after the detention, that is, from 2020. In fact, the two years during which the offender was hiding are not counted towards the limitation period. At the moment the specified person is detained in 2020, it shall be considered that one year of the limitation period has elapsed.
Evasion of the investigation and the court by the offender is understood as the deliberate commission of actions aimed at evading criminal liability and compelling the investigative authorities to search for the offender. Evasion may be expressed in leaving one's place of residence, changing one's appearance, residing at a new place of residence under another person's surname, changing one's surname, and so forth.
The running of the limitation period shall be interrupted if, before the expiration of the periods specified in Part 1 of the Article under consideration, a person who has committed a serious or especially serious crime commits a new serious or especially serious crime. In such cases, the calculation of the limitation period shall begin anew from the date of commission of the new crime. In other cases, if a person commits another crime before the expiration of the limitation period, the limitation period for each crime shall run independently. Consequently, if a person who previously committed a minor or medium-gravity crime commits a new crime, the limitation period for each crime shall run independently without being interrupted. It should also be noted that it does not matter what kind of new crime the offender commits — intentional or negligent.
If the sanction of the article of the Special Part provides for the possibility of imposing the death penalty or life imprisonment for a previously committed crime, the issue of applying the limitation period shall be resolved through special consideration by the court of the issue of applying or refusing to apply exemption from criminal liability under the Article under consideration. This means that a person cannot automatically be exempted from criminal liability upon the expiration of the limitation period; this issue is considered by the court through the issuance of a ruling on exempting such person from criminal liability due to the expiration of the limitation period or refusing to exempt the person from criminal liability, even though the 15-year period provided for in subparagraph 5) of Part 1 of Article 71 of the Criminal Code has elapsed. In deciding this issue, the court takes into account the gravity of the crime, the person's conduct after committing the crime, the person's merits before the country and the people, as well as public opinion.
The court may decide not to apply the limitation period only when the death penalty was provided for by the law in force at the time the crime was committed (Article 5 of the Criminal Code). At the same time, if the court does not consider it possible to exempt a person from criminal liability due to the expiration of the 15-year and 20-year limitation periods established for persons evading the investigation and the court, the death penalty may not be imposed. In this case, the court shall impose life imprisonment instead of the death penalty. If the sanction of the article of the Special Part of the Criminal Code provides for life imprisonment, the court may not impose this type of imprisonment and shall instead impose imprisonment for a term of 25 years.
It follows from the provisions of Part 5 of Article 71 of the Criminal Code that the issue of applying the limitation period to a person who has committed a crime for which the death penalty or life imprisonment may be imposed shall be resolved exclusively by the court. Exemption from criminal liability for such crimes is a right of the court, not an obligation.
The calculation of the limitation period should not be confused with the calculation of the term of the imposed punishment. As is known, the term of imprisonment is calculated from the moment the person is detained or taken into custody. Thus, according to Part 5 of Article 128 of the Criminal Procedure Code, the period of detention of a person suspected of committing a criminal offense is calculated from the moment of actual detention and may not exceed seventy-two hours. Taking this calculation into account, for example, a sentence of two years of imprisonment that began on December 15, 2016, should end on December 14, 2018.
The calculation of the limitation period for bringing a person to criminal liability, however, begins after the commission of the criminal offense. Since the course of a day begins at 0:00, the running of the limitation period should also begin at 0:00 on the day following the day of commission of the criminal offense. In this regard, the day of commission of a criminal offense shall be deemed to be the time when the socially dangerous act (omission) was carried out, regardless of the time when the consequences occurred (Article 5 of the Criminal Code).
Paragraph 11 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan “On the Court Judgment” emphasizes:
“The courts should bear in mind that, where the limitation periods for bringing a person to criminal liability established by Article 71 of the Criminal Code have expired, proceedings in the case shall be terminated by issuing a ruling on the basis of paragraph four of Part 1 of Article 35, Articles 327 and 343 of the Criminal Procedure Code at the preliminary hearing stage or during the main court hearing.
If the defendant objects to the termination of the proceedings on the above grounds, the proceedings shall continue and, where there are grounds for doing so, shall conclude with the issuance of a conviction, with the person being exempted from criminal liability for the criminal offense committed.
If the fact that the limitation period has expired is established during the main court hearing, for example, in the event of reclassification of the criminal offense, the court shall issue a conviction exempting the guilty person from criminal liability.
The issue of applying the limitation period to a person who has committed a criminal offense for which the death penalty or life imprisonment may be imposed shall be resolved only during the main court hearing by issuing a judgment. At the same time, the court shall have the right to apply the limitation periods, issue a conviction and exempt the person from criminal liability. If the court does not consider it possible to exempt the person from criminal liability due to the expiration of the limitation period, it shall issue a conviction imposing punishment in accordance with Part 5 of Article 71 of the Criminal Code.”
In accordance with Part 6 of Article 71 of the Criminal Code, exemption from criminal liability due to the expiration of the limitation period shall not apply to persons who have committed crimes against the peace and security of humanity, terrorist crimes, extremist crimes, torture, crimes against the sexual inviolability of minors, as well as especially serious crimes against the individual, the foundations of the constitutional order and state security, public safety and public order.
Crimes against the peace and security of humanity include acts for which liability is provided under Articles 160–174 of the Criminal Code. The exhaustive list of terrorist crimes is established in paragraph 30) of Article 3 of the Criminal Code, and the list of extremist crimes is established in paragraph 39) of Article 3 of the Criminal Code (see the commentary to Article 3 of the Criminal Code).
Torture includes crimes for which liability is provided under Article 146 of the Criminal Code.
The list of crimes against the sexual inviolability of minors is set out in paragraph 42) of Article 3 of the Criminal Code (see the commentary to Article 3 of the Criminal Code).
Especially serious crimes against the individual include acts for which liability is provided under Article 99; Parts 3, 3-1, 3-2 and 4 of Article 120; Parts 3, 3-1, 3-2 and 4 of Article 121; Part 3 of Article 122; Part 3 of Article 124; Part 3 of Article 125; and Part 4 of Article 128 of the Criminal Code.
Especially serious crimes against the foundations of the constitutional order and state security include acts for which liability is provided under Articles 175–178; Part 3 of Article 179; Part 3 of Article 180; Article 181; Parts 1 and 3 of Article 182; and Part 1 of Article 184 of the Criminal Code.
Especially serious crimes against public safety and public order include acts for which liability is provided under Parts 3 and 4 of Article 255; Parts 1 and 3 of Article 257; Part 2 of Article 259; Part 3 of Article 261; Part 3 of Article 262; Parts 1, 3, 4 and 5 of Article 263; Parts 1 and 3 of Article 264; Parts 2 and 3 of Article 265; Part 2 of Article 267; Article 268; Part 3 of Article 269; Part 3 of Article 270; Part 3 of Article 271; Parts 3 and 4 of Article 286; and Part 4 of Article 291 of the Criminal Code.
Commentary of 2021 on 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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