Commentary to article 23. Innocent infliction of harm of the Criminal Code of the Republic of Kazakhstan of the Criminal Code of the Republic of Kazakhstan

     1. An act is considered to have been committed innocently if the actions (inaction) and socially dangerous consequences that occurred were not covered by the intent of the person who committed it, and criminal liability for committing such an act and causing socially dangerous consequences through negligence is not provided for by this Code.      

2. An act shall be deemed to have been committed innocently if the person who committed it did not realize and, due to the circumstances of the case, could not have realized the social danger of his actions (inaction) or did not foresee the possibility of socially dangerous consequences and, due to the circumstances of the case, should not or could not have foreseen them. An act is also considered to have been committed innocently if the person who foresaw the occurrence of socially dangerous consequences when committing it expected to prevent them with sufficient grounds or could not prevent these consequences due to the inconsistency of his psychophysiological qualities with the requirements of extreme conditions or neuropsychiatric overloads.      

For the first time, the Criminal Code of 1997 specifically identifies the issue of innocent harm as a circumstance precluding criminal liability.      

According to Part 1 of Article 23 of the Criminal Code of the Republic of Kazakhstan, an act is recognized as innocent if the actions (inaction) and socially dangerous consequences that occurred were not covered by the intent of the person who committed it, and criminal liability for committing such an act and causing socially dangerous consequences through negligence is not provided for in the Criminal Code.      

The first type of innocent harm provided for in Part 1 of Article 23 of the Criminal Code of the Republic of Kazakhstan owes its existence to the provision set out in Part 4 of Article 19 of the Criminal Code, which establishes that an act committed through negligence is recognized as a crime only if it is specifically provided for in the relevant article of the Special Part of the Criminal Code. Therefore, if a person acts unintentionally, and responsibility for the careless commission of these actions is not provided for in the Criminal Code, innocent harm occurs. For example, the legislator did not provide for liability for causing minor or moderate harm to health through negligence. If the infliction of such harm to health was not covered by the intent of the perpetrator, there is an innocent infliction of harm. Similarly, criminal liability for exceeding the limits of necessary defense, resulting in causing death or serious harm to the attacker's health, occurs only if the specified consequences are intentionally inflicted. If the person was careless about the occurrence of these consequences, there is also an innocent infliction of harm.      

In Part 2 of Article 23 of the Criminal Code of the Republic of Kazakhstan, the legislator provided for two types of case (incident). This regulation is due to the fact that the subjective signs of a case (incident) and a crime committed through negligence are closely related. Since the negligent form of guilt, in accordance with art. 21 of the Criminal Code of the Republic of Kazakhstan, is represented by two types (arrogance and negligence), in practice there is a need to distinguish:

1) a case (incident) and a crime committed by negligence;

2) a case (incident) and a crime committed out of presumption.      

When distinguishing a case from a crime committed through negligence, attention should be paid to the following. An act is considered to have been committed negligently if the person did not foresee the possibility of socially dangerous consequences of his actions (inaction), although with due care and foresight he should have and could have foreseen these consequences. In a case (incident) bordering on negligence, the person, firstly, did not realize and, due to the circumstances of the case, could not realize the social danger of his actions (inaction), for example: a person, unaware of the intentions of the group to deal with the victim, persuades her to go with the group for a weekend picnic; Secondly, he did not foresee the possibility of socially dangerous consequences and, due to the circumstances of the case, should not or could not have foreseen them, for example: a person called out to a neighbor who was climbing the stairs to the top floor, who was intoxicated and, turning around, stumbled, rolled down the stairs, receiving a concussion.      

Thus, in case of criminal negligence, a person, with due care and foresight, should and could have foreseen the onset of socially dangerous consequences, and in case of an incident, a person could not and should not have foreseen them under any circumstances.      

Innocent harm, bordering on criminal arrogance, is characterized by the following signs: first, a person anticipates the possibility of socially dangerous consequences, but expects to prevent them if there are sufficient grounds for that.; secondly, a person anticipates the possibility of socially dangerous consequences, but cannot prevent them due to the inconsistency of their psychophysiological qualities with the requirements of extreme conditions or neuropsychiatric overloads (for example, the actions of a machine operator that caused an accident with human casualties do not constitute a crime, who fell asleep at the wheel of a combine harvester due to the fact that three days did not he was sleeping, trying to finish harvesting before the frost). However, it should be borne in mind that harm will be recognized as innocent only if extreme conditions or neuropsychiatric overloads were not created by the person himself. Accordingly, the mechanic will be held accountable if it turns out that he did not sleep for three days due to the fact that he consumed alcoholic beverages, and after going to work, fell asleep at the wheel.

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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