Commentary on Article 78. Exemption from Criminal Liability and Punishment on the Basis of an Act of Amnesty or Pardon of the Criminal Code of the Republic of Kazakhstan

1. An act of amnesty shall be issued by the Parliament of the Republic of Kazakhstan in respect of an individually undefined group of persons.

2. On the basis of an act of amnesty, persons who have committed a criminal misdemeanor or a crime of minor or medium gravity may be released from criminal liability. Persons convicted of committing a criminal misdemeanor or a crime of minor or medium gravity may be released from punishment, or the punishment imposed on them may be reduced or replaced with a more lenient type of punishment, or such persons may be released from an additional type of punishment. Persons convicted of committing a grave or especially grave crime may have the term of punishment imposed on them reduced. The criminal record of persons who have served their punishment or have been released from further serving it may be expunged by an act of amnesty.

An act of amnesty 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, terrorist crimes, extremist crimes, torture, as well as persons whose punishment was imposed in cases of recidivism or dangerous recidivism.

3. An act of pardon concerning an individually identified person in respect of whom a conviction has entered into legal force, as well as a person serving or having served, within the territory of the Republic of Kazakhstan, a punishment imposed by a judgment of a foreign state's court, shall be issued by the President of the Republic of Kazakhstan.

4. In the event of a pardon, a person convicted of a crime may be released from further serving the punishment, or the punishment imposed on that person may be reduced or replaced with a more lenient type of punishment, or such person may be released from an additional type of punishment. The criminal record of a person who has served the punishment or has been released from further serving it may be expunged by an act of pardon.

Amnesty is one of the oldest institutions and instruments of state policy and criminal law. Today, the institution of amnesty is known in the vast majority of states, but it is applied differently everywhere.

Amnesty is a form of state forgiveness of persons who have committed crimes. The term itself, “amnesty,” originates from the Greek amnestia — oblivion, forgiveness. The declaration of amnesty is the prerogative of the Parliament of the Republic of Kazakhstan (subparagraph 6) of paragraph 1 of Article 54 of the Constitution).

There is no legislative definition of the concept of “amnesty.” In legal theory, there is no unity of opinion regarding the legal nature of amnesty; however, many scholars emphasize its normative character, since an act declaring amnesty contains legal rules that are subject to subsequent implementation by law enforcement entities.

Amnesty is declared by the Parliament of the Republic of Kazakhstan through the adoption of a resolution on the declaration of amnesty and a resolution on the procedure for applying the resolution on the declaration of amnesty. These documents contain interrelated provisions, and the application of one resolution without the other is impossible. The resolution declaring amnesty specifies the persons to whom amnesty applies, the conditions for its application, as well as the persons to whom amnesty does not apply. The resolution on the procedure for applying amnesty specifies the bodies entrusted with implementing the amnesty act and clarifies certain provisions and terms of the legal document. The preamble of the resolution declaring amnesty generally refers to the principle of humanism as the basis for its declaration.

It can be said that a resolution declaring amnesty is a unique normative legal act. The adoption by the Parliament of the Republic of Kazakhstan of resolutions on amnesty is provided for by the Constitution of the Republic of Kazakhstan, which distinguishes these resolutions from other normative acts, and they have a special constitutional nature.

Consequently, amnesty is an act of a normative nature adopted by the Parliament of the Republic of Kazakhstan, whose effect extends to persons who: a) have committed crimes but in respect of whom no conviction has been issued; or b) have been convicted by a court judgment to certain types and terms of punishment. Such acts often also contain references to individual characteristics describing the identity of the offender (gender, age, etc.). However, in any case, the persons to whom amnesty applies are not individually (personally) identified in the act. This is precisely why the issuance of an act of amnesty presupposes subsequent law enforcement activities by other law enforcement agencies (the issuance of rulings or determinations terminating criminal proceedings, a resolution of the body responsible for the execution of punishment on release from serving the punishment, etc.). Thus, the direct legal basis for applying amnesty to a specific person is a law enforcement act issued by the relevant body.

It should be borne in mind that a resolution declaring amnesty does not repeal or amend the rules of criminal law and does not eliminate the criminality or punishability of an act. Nor does an act of amnesty call into question the legality, validity, or fairness of a court judgment.

Acts of amnesty cannot be fully attributed to any one branch of law.

The institution of amnesty includes provisions of constitutional, criminal, criminal procedural, and penal enforcement law. This institution is comprehensive; it is applied at different stages of criminal liability and provides for various forms of mitigating the position of persons who have committed crimes: release from criminal liability (suspects and accused persons), release from punishment (convicted persons), and expungement of a criminal record (persons who have served their punishment).

If an act of amnesty enters into force before the commencement of the judicial examination of the merits of a case, the release of suspects (accused persons) from criminal liability is carried out by terminating the criminal case pending before the pre-trial investigation body or the court, or by terminating criminal prosecution. If the suspect (accused person) objects to the termination of criminal prosecution, the criminal proceedings shall continue in the ordinary manner. Thus, pursuant to subparagraph 3) of part 1 of Article 35 of the Criminal Procedure Code, one of the grounds for terminating a criminal case is an act of amnesty, provided that it eliminates the application of punishment for the acts committed. Pursuant to part 4 of Article 35 of the Criminal Procedure Code, termination of a criminal case on the grounds specified in subparagraph 3) of part 1 of Article 35 of the Criminal Procedure Code (along with subparagraphs 4) and 11) of part 1 of Article 35 of the Criminal Procedure Code) is not permitted if the person directly identified by the applicant as the person who committed the criminal offense (a witness entitled to the right to defense), the suspect, the accused person, as well as the defendant or their legal representatives, object to it. In this case, the proceedings continue and, where there are grounds for doing so, conclude with the issuance of a conviction with the person being released from punishment or criminal liability.

Termination of a criminal case simultaneously entails termination of criminal prosecution.

If an act of amnesty enters into force during the judicial proceedings, the court shall terminate the criminal case during the court hearing or, if the defendant objects to the termination of criminal prosecution, shall continue examining the criminal case in the ordinary manner until it is resolved on its merits. If a conviction is issued and there are grounds for applying amnesty, the court shall release the convicted person from punishment. Where a conviction has been issued, the matter can only concern release from punishment, and not release from criminal liability.

Amnesty provides for several forms of mitigating the position of a convicted person: release from the principal punishment; reduction of the term (amount) of the punishment imposed, including reduction of the unserved portion of the punishment; replacement of the imposed punishment with a more lenient type of punishment; release from additional punishment.

An act of amnesty applies only to punishments that have not been served or enforced at the time the act enters into force.

In accordance with part 2 of the commented article, on the basis of an act of amnesty, persons who have committed a criminal misdemeanor or a crime of minor or medium gravity may be released from criminal liability. Furthermore, as follows from part 2 of the commented article, alongside release from criminal liability, persons convicted of committing a criminal misdemeanor or a crime of minor or medium gravity may be released from punishment, or the punishment imposed on them may be reduced or replaced with a more lenient type of punishment, or such persons may be released from an additional type of punishment. A convicted person may be released from further serving the punishment.

Furthermore, pursuant to part 2 of the commented article, persons convicted of committing a grave or especially grave crime may have the term of punishment imposed on them reduced on the basis of an act of amnesty.

As can be seen from the foregoing, persons who have committed a criminal misdemeanor or a crime of minor or medium gravity may be released from criminal liability or may be released from punishment, or the punishment imposed on them may be reduced or replaced with a more lenient type of punishment, or such persons may be released from additional punishment.

In contrast, persons convicted of committing a grave or especially grave crime may only have the term of the punishment imposed on them reduced. There is no provision for release from punishment.

Finally, pursuant to part 2 of the commented article, the criminal record of persons who have served their punishment or have been released from further serving it may be expunged by an act of amnesty.

The application of an act of amnesty to persons who have committed continuing or continuing-course crimes is characterized by certain specific features. Amnesty applies to continuing crimes that ended before the issuance of the act of amnesty. However, it does not apply to continuing crimes that continued after the declaration of amnesty. Amnesty applies to continuing-course acts that were completed before its declaration and does not apply if at least one of the criminal acts constituting the continuing-course offense was committed after the declaration of amnesty.

If an act of amnesty is issued after the pronouncement of a judgment but before it enters into legal force, the court of second instance shall leave the conviction unchanged and release the convicted person from serving the punishment, provided that the judgment is not subject to cancellation or amendment on other grounds.

A person released from criminal liability is not released from the obligation to compensate for the damage caused by their unlawful actions.

Acts of amnesty are usually issued to mark certain socio-political events. During the period from 1991 to 2020, 6 acts of amnesty were issued. How frequently may amnesty be applied? This issue is not regulated by law; therefore, acts of amnesty may be issued as frequently as the legislature wishes.

In society and among certain specialists, the idea is sometimes expressed that amnesty should either be completely abandoned or its declaration substantially reduced, since such acts undermine the principles of the inevitability of criminal liability and social justice. It should be acknowledged that frequent use of the institution of amnesty leads to its natural devaluation, reduces the value of such an act, and prevents the achievement of the objectives that the legislature sought to attain through it. It is well known that several so-called “economic” amnesties that were declared did not produce any tangible results.

Nevertheless, it should be borne in mind that amnesty, like any institution of criminal law, performs certain functions and carries a certain social significance. First and foremost, amnesty serves as an act of forgiveness and mercy. Through amnesty, the legislature makes certain adjustments to punitive policy and punitive practice. This aspect is very important to us. It is necessary to acknowledge the excessive use of imprisonment. To a certain extent, amnesty helps reduce the burden on places of detention, although, unfortunately, they are subsequently filled up again very quickly.

According to paragraph 9 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan “On the Court Judgment”:

“The issue of termination of a criminal case by the court on the basis of an act of amnesty shall be considered by holding a preliminary hearing in accordance with part one of Article 321 of the Criminal Procedure Code, with the participation of the defendant. In this case, a ruling terminating the case shall be issued by the court in the absence of circumstances preventing the application of the act of amnesty, and shall specify the grounds for terminating the case and the defendant's consent to the application of the act of amnesty. The defendant's consent shall mean full admission of the charge brought against them and the civil claim filed. The ruling terminating the case must comply with the requirements of Article 327 of the Criminal Procedure Code and resolve the issues concerning the recovery of the civil claim. In this regard, it should be taken into account that, pursuant to the requirements of part one of Article 170 of the Criminal Procedure Code, the court must grant the civil claim in full. In the same ruling, the court shall resolve the issue of physical evidence in accordance with the procedure established by part three of Article 118 of the Criminal Procedure Code. Where the defendant considers themselves innocent or disagrees with the civil claim, the court shall schedule and conduct the main court hearing, which, where there are grounds for doing so, shall conclude with the issuance of a conviction, imposing punishment on the guilty person and releasing them from that punishment.

If, during the judicial investigation, no circumstances preventing the application of the act of amnesty are established, the court shall terminate the case due to amnesty in accordance with Article 343 of the Criminal Procedure Code.

The issue of applying an act of amnesty in criminal cases where money and other valuables acquired through criminal means, items of illegal entrepreneurship, and smuggling have been recognized as physical evidence shall be resolved during the main court hearing, since, pursuant to subparagraph 4) of part three of Article 118 of the Criminal Procedure Code, these items are subject to transfer to state revenue under a court judgment.”

According to part 2 of the commented article, an act of amnesty 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, terrorist crimes, extremist crimes, torture, as well as persons whose punishment was imposed in cases of recidivism or dangerous recidivism.

The list of crimes against the sexual inviolability of minors is provided in paragraph 42); the list of terrorist crimes — in paragraph 30); and the list of extremist crimes — in paragraph 39) of Article 3 of the Criminal Code (see the commentary to Article 3 of the Criminal Code).

Criminal liability for torture is provided for in Article 146 of the Criminal Code.

Pursuant to part 1 of Article 14 of the Criminal Code, recidivism of crimes is recognized as the commission by a person of a grave crime if that person was previously sentenced to imprisonment for committing a grave crime.

Pursuant to part 2 of Article 14 of the Criminal Code, dangerous recidivism of crimes is recognized as the commission by a person of:

a grave crime, if that person was previously sentenced to imprisonment twice for committing a grave crime or was convicted of an especially grave crime;

an especially grave crime, if that person was previously sentenced to imprisonment for committing a grave or especially grave crime.

An act of pardon applies to an individually identified person in respect of whom a conviction has entered into legal force. An act of pardon may also be issued in respect of a person serving in the Republic of Kazakhstan a punishment imposed by a judgment of a foreign state's court.

It should be noted that although the concepts of “amnesty” and “pardon” are used in current legislation to designate institutions that differ in their legal nature, previously they were encompassed by a single term — “pardon.” It could be individual or take the form of amnesty (general forgiveness). It is known that even in the works of Cesare Beccaria, two types of pardon were distinguished — forgiveness and mercy. Consequently, the concept of “pardon” was also regarded as a broader (generic) concept in the legislation of foreign countries of that period.

There is no legislative definition of pardon. In the Russian language, “to pardon” means “to mitigate or cancel punishment by showing leniency,” while “to show mercy” means “to spare, to forgive someone for their guilt” (S. I. Ozhegov). It is therefore characteristic that definitions of pardon proposed in legal theory generally rely on the terms “beneficence,” “mercy,” and “forgiveness,” while identifying its legal characteristics.

The right to petition for a pardon is a constitutional right of a convicted person; only the convicted person themselves (or a person who has served their punishment) may submit a petition for pardon.

Pardon is the exclusive prerogative of the President of the Republic of Kazakhstan (subparagraph 15) of Article 44 of the Constitution of the Republic of Kazakhstan).

An act of pardon, just like an act of amnesty, does not eliminate the criminality or punishability of an act, does not repeal a court judgment, and does not call it into question. Pardon, like amnesty, is not rehabilitation; it is applied to a person who has been lawfully convicted.

The constitutional provisions on pardon are further elaborated in criminal, penal enforcement, and criminal procedural legislation. Thus, part 3 of Article 78 of the Criminal Code emphasizes that an act of pardon concerning an individually identified person in respect of whom a conviction has entered into legal force, as well as a person who has served or is serving, within the territory of the Republic of Kazakhstan, a punishment imposed by a judgment of a foreign state's court, shall be issued by the President of the Republic of Kazakhstan. Thus, an act of pardon applies to an individually identified person in respect of whom a conviction has entered into legal force. An act of pardon may also be issued in respect of a person serving in the Republic of Kazakhstan a punishment imposed by a judgment of a foreign state's court.

According to part 4 of the commented article, in the event of a pardon, a person convicted of a crime may be released from further serving the punishment, or the punishment imposed on that person may be reduced or replaced with a more lenient type of punishment, or such person may be released from an additional type of punishment. The criminal record of a person who has served the punishment or has been released from further serving it may be expunged by an act of pardon.

Consequently, it follows from the legislation (part 4 of Article 78 of the Criminal Code) that, by an act of pardon: 1) a person may be released from further serving the punishment; or 2) the punishment imposed may be reduced; or 3) it may be replaced with a more lenient type of punishment; 4) the criminal record of a person serving a punishment or released from further serving it may be expunged.

Summarizing the foregoing, pardon may be defined as follows: pardon is an extrajudicial act carried out by the President of the Republic of Kazakhstan within the framework of their constitutional powers, applied to an individually identified person convicted of committing a crime, and consisting in the mitigation of that person's criminal-law status in the form of release from further serving the punishment, reduction or replacement of the imposed punishment with a more lenient type thereof, or expungement of the criminal record.

A petition for pardon is considered in accordance with the Regulations on the Commission on Pardon Issues under the President of the Republic of Kazakhstan, approved by Decree of the President of the Republic of Kazakhstan No. 140 dated July 5, 2006. In accordance with subparagraph 15) of Article 44 of the Constitution of the Republic of Kazakhstan, subparagraph 6) of Article 19 and subparagraph 3) of paragraph 2 of Article 33 of the Constitutional Law of the Republic of Kazakhstan dated December 26, 1995, “On the President of the Republic of Kazakhstan,” these Regulations establish the procedure for the activities of the Commission on Pardon Issues under the President of the Republic of Kazakhstan and the consideration of petitions for pardon.

Pardon is granted by the President of the Republic of Kazakhstan on the basis of a petition submitted by a person in respect of whom a conviction has entered into legal force, as well as by a person serving or having served, within the territory of the Republic of Kazakhstan, a punishment imposed by a judgment of a foreign state's court.

Paragraph 3 of the Regulations provides that the President of the Republic of Kazakhstan may, at their discretion, pardon a convicted person or a person who has served their punishment.

In accordance with paragraph 5 of the Regulations, pardon is granted in the form of:

“1) replacement of the death penalty with life imprisonment or imprisonment for a fixed term;

1-1) replacement of life imprisonment with imprisonment for a fixed term;

release from further serving the punishment or reduction of the term of the imposed punishment;

replacement of the punishment imposed by the court with a more lenient type of punishment;

3-1) release from an additional type of punishment;

expungement of the criminal record of persons who have served their punishment or have been released from further serving it.”

Consideration of materials concerning pardon is carried out by the Commission on Pardon Issues under the President of the Republic of Kazakhstan, which is an advisory body under the President of the Republic of Kazakhstan.

The Commission includes, ex officio, the Deputy Prosecutor General responsible for issues relating to the execution of punishment and the rehabilitation of citizens, and the Chairman of the Committee of the Penal Enforcement System of the Ministry of Internal Affairs of the Republic of Kazakhstan. Members of Parliament of the Republic of Kazakhstan, representatives of non-governmental organizations, and other persons may also be included in the Commission.

When considering the issue of pardon, the following are examined and taken into account:

the nature and degree of public danger of the crime committed, the identity of the convicted person, their conduct, attitude toward work, the unserved term of punishment, family circumstances, and other circumstances relevant to the consideration of a petition for pardon;

the opinion of the Chairman of the Supreme Court, the Prosecutor General, and the Minister of Internal Affairs of the Republic of Kazakhstan regarding the advisability of applying an act of pardon to the convicted person;

the opinions of the administrations of bodies executing punishment, public associations, and labor collectives (if available);

a petition (if available) from the victim or their legal representative for the pardon of the convicted person.

The working body of the Commission is the State Legal Department of the Administration of the President of the Republic of Kazakhstan, which performs the following functions:

preliminary examination of submitted materials concerning pardon and preparation of the necessary materials for consideration by the Commission and the President of the Republic of Kazakhstan;

monitoring the timely execution of decrees of the Head of State on pardon;

generalization of the practice of applying pardon;

other powers provided for by the Regulations on the Administration of the President of the Republic of Kazakhstan and the Regulations on the Commission on Pardon Issues under the President of the Republic of Kazakhstan.

A convicted person shall submit a written petition for pardon addressed to the President of the Republic of Kazakhstan.

A petition for pardon by a person sentenced to the death penalty, imprisonment, or arrest shall be submitted through the administration of the institution executing the punishment. A petition for pardon by a person (military servicemember) sentenced to arrest with the punishment being served in a guardhouse shall be submitted through the military police bodies at the place where the punishment is being served. A petition for pardon by a person sentenced to other types of punishment, a person given a suspended sentence, or a person granted a deferment of serving the punishment shall be submitted through the probation service at the place of residence. A petition for pardon by a person conditionally released ahead of schedule from serving a punishment shall be submitted through the internal affairs bodies at the place of residence. A person who has served their punishment or has been released from further serving it shall independently submit a petition for pardon addressed to the President of the Republic of Kazakhstan.

The administrations of institutions and bodies executing punishment, or the internal affairs bodies, shall, within fifteen working days after registration of a petition for pardon, send it together with the documents specified in paragraph 25 of the Regulations to the Administration of the President of the Republic of Kazakhstan.

The person submitting the petition shall be notified of its forwarding within three working days.

Materials received together with a petition for pardon shall be forwarded by the working body of the Commission to the Prosecutor General's Office, the Supreme Court, and the Ministry of Internal Affairs of the Republic of Kazakhstan, which shall, no later than one month from the date of receipt, submit their conclusions indicating the content of the court decisions adopted, the circumstances of the crime, information about the identity of the convicted person, and their opinion on the merits of each petition for pardon.

Petitions for pardon containing references to unjustified conviction or violations of legality that require verification shall be forwarded by the working body or the Commission to the relevant state bodies for verification.

Following the examination, and after receiving the conclusions of the relevant state bodies, the materials accompanying the petition for pardon shall be submitted by the working body for consideration by the Commission. Based on the results of consideration of the Commission's proposals, the President of the Republic of Kazakhstan shall issue a decree on pardon, which is not subject to appeal.

There are several differences between amnesty and pardon:

an act of amnesty is issued by the Parliament of the Republic of Kazakhstan in the form of a Law of the Republic of Kazakhstan, whereas an act of pardon is adopted by the President of the Republic of Kazakhstan in the form of a decree;

amnesty applies to an individually undefined group of persons, whereas pardon applies to a specific person. Unlike amnesty, pardon may be applied to a convicted person for committing any crime;

under an act of amnesty, both release from criminal liability and release from punishment are possible, whereas under an act of pardon, only release from punishment is possible. Consequently, pardon cannot be applied to suspects or accused persons.

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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