Commentary on Article 98. Murder Committed in a State of Passion of the Criminal Code of the Republic of Kazakhstan
1. Murder committed in a state of sudden and intense emotional disturbance (affect) caused by violence, abuse or grave insult, or by other unlawful or immoral acts (omissions) of the victim, as well as by a prolonged psychologically traumatic situation arising from the systematic unlawful or immoral conduct of the victim, —
shall be punishable by restriction of liberty for a term of up to three years, or arrest for a term of up to six months, or deprivation of liberty for a term of up to three years.
2. Murder of two or more persons committed under the circumstances specified in Part One of this Article —
shall be punishable by deprivation of liberty for a term of up to five years.
The murder provided for in this Article, just like the murder provided for in Article 97 of the Criminal Code, is classified as a privileged form of murder. The grounds for mitigating punishment for such murder are connected, on the one hand, with the particular psychological state of the perpetrator and, on the other hand, with the fact that this state of the perpetrator was caused by the unlawful conduct of the victim themselves.
The object of the crime is the life of the victim.
The objective element is murder committed in a state of sudden and intense emotional disturbance (affect) caused by violence, abuse or grave insult, or by other unlawful or immoral acts (omissions) of the victim, as well as by a prolonged psychologically traumatic situation arising from the systematic unlawful or immoral conduct of the victim.
Affection (affect) is a special psychological state of a person characterized by its short duration and rapid development, a strong and profound emotional experience, vivid external manifestations, narrowing of consciousness and reduced control over one's actions.
Intense emotional disturbance is not considered a mental disorder and is not regarded as a medical criterion of legal insanity. Therefore, it is sometimes referred to as physiological affect, as opposed to pathological affect, in which an intense emotional experience results in a complete loss of consciousness, thereby excluding criminal responsibility on the grounds of insanity. Physiological affect does not deprive a person of the ability to understand their actions, but significantly impairs self-control and the critical assessment of decisions being made.
Physiological affect is characterized by an emotional outburst of high intensity, which takes a person's psyche out of its normal state, weakens conscious intellectual activity, leads to excessive intensity of internal psychological processes and intense external manifestations, and causes actions to be performed without full awareness. The external manifestation of an affective state varies depending on many circumstances, including the individual characteristics of a person's psyche. Therefore, only a comprehensive psychological and psychiatric examination can provide a conclusion as to whether physiological affect was present or absent in a particular individual in a particular situation. In this regard, a number of questions must be put to the experts: whether the perpetrator was in a state of affect at the time of committing the crime, and the temporal boundaries of that state, i.e. its beginning and end.
The Criminal Code Article under consideration concerns physiological affect, which must be distinguished from pathological affect, which is regarded as one of the types of temporary mental disorder and entails recognition of the person as legally insane (Article 16 of the Criminal Code).
Attention should be drawn to the fact that the law (Article 98 of the Criminal Code) refers not simply to a state of emotional disturbance, but to intense emotional disturbance.
In order for physiological affect to be recognized as a circumstance mitigating criminal liability for murder, it is necessary that the affect arise suddenly as a reaction to the unlawful conduct of the victim. The suddenness of intense emotional disturbance should be understood as its unexpected occurrence from the perspective of the perpetrator themselves.
A state of intense emotional disturbance may arise in a person as a result of various circumstances. However, criminal law recognizes a state of physiological affect as a circumstance mitigating criminal liability only when it is caused by the unlawful conduct of the victim. The disposition of Article 98 of the Criminal Code establishes a list of circumstances, at least one of which must be established in order for this Article to apply.
First and foremost, the Article refers to violence committed by the victim (strikes, beatings, unlawful deprivation of liberty, infliction of bodily harm, threats to life of varying degrees of severity, directed not only against the perpetrator but also against their relatives and close persons). Murder committed in a state of intense emotional disturbance caused by lawful actions directed against the perpetrator cannot be classified under Article 98 of the Criminal Code. For example, where a police officer detaining a criminal is killed by one of the persons present.
If a person, while committing murder in a state of affect, exercises their right to necessary self-defence, that person is either exempted from criminal liability pursuant to Article 32 of the Criminal Code or held liable for murder committed in excess of the limits of necessary self-defence (Article 99 of the Criminal Code).
Since the law does not specify the type of violence, it should be assumed that affect may also be caused by psychological violence. The practice and doctrine of criminal law proceed on the basis that violence must be unlawful in nature. If violent acts were lawfully applied by the victim, Article 98 of the Criminal Code cannot be applied.
Abuse involves repeated acts of violence by the victim, expressed in the crude and cynical humiliation of the honour and dignity of the perpetrator or their close persons, ridicule of their ideals or shortcomings, disclosure of information concerning the intimate aspects of their life, and so forth.
Grave insult is a subjective evaluative category based on the norms of morality and ethics (gross humiliation of honour and dignity, insult to national or religious feelings, desecration of love, and so forth).
Other unlawful or immoral acts (omissions) of the victim include cases involving the infliction of property damage, violation of the right to use property, acts of arbitrary self-help, refusal to repay a debt, marital infidelity, and similar circumstances.
A prolonged psychologically traumatic situation caused by the systematic unlawful or immoral conduct of the victim may be expressed through the commission by the victim of a series of acts that create unbearable living or working conditions for the perpetrator, as a result of which the “cup of patience” overflows, the person is unable to restrain themselves and commits murder. At the same time, there should be no break in time between the murder and the provocative conduct of the victim.
Exceptions are certain cases involving a prolonged psychologically traumatic situation arising from the systematic unlawful or immoral conduct of the victim, in which a state of affect may occur even where there is a time interval between the murder and the victim's last act of conduct. For example, a father who is an alcoholic systematically abuses his wife and children. In practice, this is recognized as a prolonged psychologically traumatic situation that gives rise to a state of physiological affect in one of the family members.
If, however, the intent to commit murder that suddenly arose as a result of physiological affect was not carried out immediately but was implemented after a certain period of time, Article 98 of the Criminal Code does not apply, because in such cases the perpetrator acts no longer in a state of affect but out of motives of revenge.
Likewise, the elements of this crime are absent where the murder committed in a state of affect was conceived by the perpetrator in advance and that intent was carried out by taking advantage of the situation that had arisen.
In cases where the act simultaneously contains the elements of murder provided for in Article 98 of the Criminal Code and murder under aggravating circumstances (Part 2 of Article 96 of the Criminal Code), the provision of Article 98 of the Criminal Code shall apply, since in the event of competition between aggravating and mitigating circumstances, preference is given to the latter.
In order to establish whether the perpetrator was in a state of affect and for how long, a forensic psychiatric examination must be conducted. In this regard, it should be borne in mind that an affective state is a short-term, intense emotion that occupies a dominant position in the perpetrator's consciousness while preserving their ability to exercise self-control and the ability to act in connection with the circumstance that caused the affect.
A prolonged time interval between the victim's actions and the perpetrator's responsive actions excludes the application of the aforementioned Article.
The crime is considered completed from the moment biological death occurs.
The subjective element of the crime under consideration is characterized by guilt in the form of sudden direct or indirect intent. Most often, the motive for such murder is revenge or jealousy, although other motives are also possible.
The subject is a physically capable and legally sane person who has reached the age of 16 at the time of committing the crime.
Part 2 of Article 98 of the Criminal Code provides for a qualified form of this crime — the murder of two or more persons committed in a state of affect. The perpetrator deprives several victims, who were involved in causing the intense emotional disturbance, of their lives either simultaneously or over a short period of time.
Murder committed by an official in a state of affect while performing their official duties should be classified exclusively under Article 98 of the Criminal Code. Additional classification under Article 308 of the Criminal Code is not required here, since the acts provided for by that Article of the Criminal Code must not be committed in a state of affect.
Commentary from 2007 on the Criminal Code of the Republic of Kazakhstan by B. I. Sh. Borchashvili, Honoured Worker of Kazakhstan, Doctor of Law, Professor, Academician of the Kazakhstan National Academy of Natural Sciences.
Date of amendment of the act: 02.08.2007
Date of adoption of the act: 02.08.2007
Place of adoption: NONE
Body that adopted the act: 180000000000
Region of application: 100000000000
Regulatory legal act registration number assigned by the rule-making body: 167
Status of the act: new
Sphere of legal relations: 028000000000
Form of the act: COMMENTARY
Legal force: 1900
Language of the act: Russian
Criminal Code, Commentaries on the Criminal Code, Normative Resolution of the Supreme Court, Criminal Legislation, Normative Legal Acts of the Republic of Kazakhstan.
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