Commentary to article 20. A crime committed intentionally by the Criminal Code of the Republic of Kazakhstan

     1. An act committed with direct or indirect intent is recognized as a crime committed intentionally.       2. A crime is considered to have been committed with direct intent if the person was aware of the social danger of his actions (inaction), foresaw the possibility or inevitability of socially dangerous consequences and desired their occurrence.      

3. A crime shall be deemed to have been committed with indirect intent if the person was aware of the social danger of his actions (inaction), foresaw the possibility of socially dangerous consequences, did not want, but deliberately allowed these consequences to occur or was indifferent to them.      

The practical significance of dividing guilt into forms lies in the fact that, along with other elements of a crime, the legislator and justice use forms of guilt to differentiate all crimes, distinguishing between more serious and less serious ones. Forms of guilt also help to distinguish guilty acts from innocent ones. Forms of guilt are considered when solving a wide range of issues: categorization of crimes (art. 10 of the Criminal Code), complicity (art. 27 of the Criminal Code), preliminary criminal activity (art. 24 of the Criminal Code), when sentencing (art. 58, 59 of the Criminal Code), etc.      

Different forms of guilt reflect a subject's different mental attitude to the crime committed, which is important for addressing questions about his individual responsibility. Guilt is always expressed in some form. There can be no guilt in general, without indicating its form.      

The concept of intent is contained in Article 20 of the Criminal Code of the Republic of Kazakhstan. According to this article, a crime is considered to have been committed intentionally if the person who committed it was aware of the socially dangerous nature of his action or omission, foresaw the possibility or inevitability of socially dangerous consequences and desired them or consciously allowed these consequences to occur or treated them indifferently. Thus, the Criminal Code of the Republic of Kazakhstan contains an indication of two elements of intent.:      

1) awareness of the socially dangerous nature of an action or omission and anticipation of the possibility or inevitability of socially dangerous consequences;      

2) the desire for socially dangerous consequences, their conscious acceptance or indifference to them.      

The first element of intent, which includes awareness of the socially dangerous nature of the act and anticipation of socially dangerous consequences, belongs to the intellectual sphere of the perpetrator's psyche. It should be borne in mind that, characterizing the intellectual moment of intent, the law uses two different indicators: consciousness and foresight. A person who intentionally commits a crime is aware of the socially dangerous nature of his action or omission and anticipates the possibility or inevitability of socially dangerous consequences. The awareness of the public danger of the nature of one's action is inherent in all intentional crimes without exception and refers to the moment when the perpetrator commits the act itself. In the case of preliminary criminal activity, when the intent is premeditated, the person is aware of the public danger of his act even before committing the crime. Anticipating socially dangerous consequences presupposes that the perpetrator understands the possibility or inevitability of socially dangerous consequences. "Foresight", in contrast to "consciousness", refers to the sphere of the future, to the fact that socially dangerous consequences may occur as a result of committing an act. Foresight, as a necessary sign of the intellectual side of intent, is inherent only in intentional crimes, when describing the composition of which the law indicates the infliction or possibility of causing specific socially dangerous consequences.      

The second element of intent, which indicates the desire for socially dangerous consequences or the conscious assumption of their occurrence, as well as indifference to them, refers to the volitional sphere of the psyche of the perpetrator. The law indicates two types of this volitional moment of intent. At the first of them, a person anticipating the socially dangerous consequences of his action or inaction, wants them to occur. In another case, a person, anticipating the socially dangerous consequences of his action or omission, consciously allows the possibility of their occurrence or treats them indifferently.      

Thus, Article 20 of the Criminal Code of the Republic of Kazakhstan not only provides a general concept of intent, but also contains a definition of two types of intent: direct and indirect.      

Direct intent is characterized by the fact that the person who committed the crime was aware of the social danger of his actions, foresaw the possibility or inevitability of socially dangerous consequences and desired their occurrence.       When describing the intellectual element of intent, the legislator first of all points to the awareness of the socially dangerous nature of his act. If knowledge belongs most of all to the field of memory, then consciousness characterizes the process of perception and comprehension. It is in this capacity, presumably, that the legislator used the word "consciousness" to characterize the intellectual moment of intent.      

In order to recognize that a person was aware of the socially dangerous nature of his actions (inaction), it is enough to establish the fact that the latter was aware of the harm caused by his behavior, not in detail, but only in general terms.      

The legislator does not include in the content of the intent the person's awareness of the criminal illegality of his actions. If a person understands that his actions (inaction) cause harm to public relations protected by criminal law, then he cannot fail to realize that such an act is prohibited by the Criminal Code of the Republic of Kazakhstan.      

Anticipating socially dangerous consequences means representing a person about the results of their actions (inaction).      

Anticipating socially dangerous consequences by a person means anticipating not only the actual signs of the consequences that have occurred, but also understanding their social significance, that is, their harmfulness to the individual, society and the state.      

With direct intent, a person anticipates the possibility or inevitability of socially dangerous consequences. By shooting at point-blank range into another person's vital organs, the perpetrator anticipates the inevitability of that person's death. If the perpetrator shoots at another person, being at a considerable distance from him, then he foresees only the possibility of the victim's death. Thus, the anticipation of socially dangerous consequences can be expressed in the consciousness of a person not only in anticipating the inevitability, but also in anticipating the possibility of such consequences.      

For direct intent, it is also necessary that the perpetrator desires the consequences of his actions that he foresees. Desire in psychological science is defined as a purposeful aspiration. The criminal result achieved in this case is either the only goal pursued by the perpetrator (for example, murder out of revenge), or a necessary means to achieve some other goal (for example, murder in order to hide the traces of another crime).       Indirect intent is characterized by the fact that a person was aware of the socially dangerous nature of his action or inaction, foresaw the possibility of socially dangerous consequences, did not want, but deliberately allowed these consequences to occur or treated them indifferently.      

With indirect intent, the person anticipates only the possibility of socially dangerous consequences. The degree of probability of predicted consequences with direct intent is higher than with indirect intent. Unlike direct intent, a person acting with indirect intent does not want socially dangerous consequences to occur, they are neither the final nor the intermediate goal of the act.      

A person's lack of desire for the anticipated consequences of his actions to occur may be due either to an indifferent attitude towards them, or even to an obvious reluctance to their occurrence.      

There is a conscious assumption of the possibility of criminal consequences as long as the subject does not rely on certain circumstances (whether his own actions, the actions of another person or the forces of nature), which, in his opinion, should reject the onset of the criminal consequences of his act that he foresees.      

There will also be a conscious assumption of a criminal consequence when a person, not wanting it to occur, counts only on "chance", on some kind of accident, due to which the consequence he foresees may not occur. Hoping for "maybe" means not hoping for anything. Therefore, it should be recognized that in these cases the person deliberately allows the occurrence of a criminal result.      

An indifferent attitude to the onset of socially dangerous consequences means a manifestation of utter indifference to the onset of these consequences, special selfishness and callousness of the perpetrator.     

 So, G., being drunk, met K. in a dark alley at night and, wanting to stop her, fired a shot in her direction out of hooligan motives. K. was wounded in the stomach.   

   The court acknowledged that by shooting towards K., G. did not want to cause her death or serious harm to her health, although he deliberately allowed them to occur. G.'s actions were committed with indirect intent.   

   The exact distinction between direct and indirect intent is important for the correct qualification of the crime. Most intentional crimes can be committed only with direct intent, for example, theft (Article 175 of the Criminal Code), robbery (Article 178 of the Criminal Code), robbery (Article 179 of the Criminal Code) and many others. The correct definition of indirect intent is also important for distinguishing indirect intent from negligence in the form of criminal arrogance.    

In addition to the direct and indirect intent provided for directly in the law, the theory of criminal law and judicial practice distinguish between other types of intent. Thus, depending on the content of intellectual and volitional moments in the theory of criminal law, intent is divided into definite, indefinite and alternative. Depending on the moment of formation, premeditated and sudden intent is distinguished. However, these types of intent are not independent and do not form new forms of guilt, but only provide an opportunity for the correct disclosure of the content of direct and indirect intent.

Commentary from 2007 to the Criminal Code of the Republic of Kazakhstan from the Honored Worker of Kazakhstan, Doctor of Law, Professor, Academician of the Kazakhstan National Academy of Natural Sciences BORCHASHVILI I.Sh.                  

Date of amendment of the act:  08/02/2007 Date of adoption of the act:  08/02/2007 Place of acceptance:  NO Authority that adopted the act: 180000000000 Region of operation:  100000000000 NPA registration number assigned by the regulatory body:  167 Status of the act:  new Sphere of legal relations:  028000000000 Report form:  COMM Legal force:  1900 Language of the Act:  rus

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