Commentary to article 35. Reasonable risk of the Criminal Code of the Republic of Kazakhstan of the Criminal Code of the Republic of Kazakhstan

    1. It is not a crime to harm the interests protected by this Code at a reasonable risk in order to achieve a socially useful goal.      

2. A risk is recognized as justified if the specified goal could not be achieved by non-risk-related actions (inaction) and the person who committed the risk took sufficient measures to prevent harm to the interests protected by this Code.      

3. A risk is not recognized as justified if it was knowingly associated with a threat to human life or health, an environmental disaster, a public disaster, or other grave consequences.      

Article 35 of the Criminal Code of the Republic of Kazakhstan defines that "it is not a crime to harm interests protected by criminal law at a reasonable risk to achieve a socially useful goal."      

The issue of the criminal legal significance of causing harm at a reasonable risk in order to achieve a socially useful result in criminal law science was considered within the framework of the concept of criminal arrogance.       Meanwhile, science, manufacturing, and medicine are in continuous development and improvement. In an effort to achieve better results, this process is often associated with experimentation, trial and error, and risk in general. In a general sense, risk is a possible success, an action in the hope of a successful outcome.  When there is a risk, there can be no absolute certainty about achieving the goal. The risk is always associated with the assumption of failure, at least to a small extent. At risk, possible harm is also expected. In an effort to achieve a socially useful goal in the performance of professional, industrial and other functions, a person sometimes has to take actions at risk, while putting legally protected interests at risk.      

It can be said that scientific and technological progress is impossible without risk, when scientific research and inventive progress can lead to failure, material damage, and sometimes are associated with a danger to human health.       Reasonable risk as a circumstance excluding criminality of an act has been known to the science of criminal law for a long time, but it received its legislative regulation for the first time in art. 35 of the Criminal Code of the Republic of Kazakhstan. This is due to a fundamental change in the relationship in the "man-state" system towards prioritizing the interests of the individual. The emancipation of the individual, the increase of his initiative and creative energy inevitably implies an increase in the number of scientific experiments and technical innovations and, as a result, an increase in the risk associated with the latter. On the other hand, personality is not guaranteed against experimenters conducting research for their own personal purposes.  In this regard, it became necessary to distinguish between legitimate (justified) risk and unlawful (unjustified) risk recognized as a crime.      

Risk is defined as "the possible danger of something", "an action at random that requires courage, fearlessness in the hope of a happy outcome."      

In the criminal law sense, the first definition of the concept of "risk" is used.      

In order for the risk of harm to be considered a circumstance that precludes the criminality of the act, it must be justified. A risk is recognized as justified if the specified goal could not be achieved by non-risk-related actions (inaction) and the person who committed the risk took sufficient measures to prevent harm to legally protected interests. At a reasonable risk, a person calculates the content of actions to achieve the set goal and takes measures to prevent the occurrence of foreseeable harm to legitimate interests. In such a situation, a person should not act recklessly.      

If, at a reasonable risk, harm is nevertheless caused to legally protected interests, then the actions committed are not recognized as a crime. The reason for this is a positive goal for which risky actions are performed and the measures taken to prevent or prevent harm.      

Any citizen has the right to take risks, regardless of the extreme conditions in which he takes risks (in carrying out professional activities or in overcoming difficulties that have arisen in the field of everyday life or leisure).      

Based on the content of Article 35 of the Criminal Code of the Republic of Kazakhstan, the conditions for the legality of a reasonable risk should include:      

1) having a socially useful goal;      

2) the impossibility of achieving the set goal by other actions not related to risk;      

3) ensuring that the person who has committed the risk takes all necessary measures to prevent possible harm to the interests protected by criminal law;      

4) the deliberate incompatibility of the assumed risk with the threat to the lives of many people, an environmental disaster or a public disaster;      

5) the risk is based on knowledge and experience, on a sober calculation, and there is a real possibility of a favorable outcome.       It is possible to fill these criteria with real content only in relation to the specifics of a particular sphere of human social activity. Therefore, for the application of the risk rule in practice, a clear legislative definition of this circumstance and the conditions of its legality are crucial. After all, fields such as medicine, military affairs, and sports primarily pose a danger to human life and health.      

Thus, a reasonable risk is defined as actions committed to achieve a socially useful goal, while performing professional or other duties with the threat of harm to interests protected by criminal law.      

The risk will not be justified if socially dangerous consequences occur as a result of violations of scientifically and practically sound regulations.      

The socially useful result of a legitimate, justified risky action is the preservation and increase of any universal values for the whole society, as well as for individual groups of the population or individuals. Such values include: life, health, a normal ecological environment, other human rights, economic, social, scientific achievements, etc.      

A goal with a reasonable risk should always be justified only by legitimate actions that do not exceed the limits of law and morality.       A risk is not recognized as legitimate if it was obviously associated with a threat to the lives of many people or the threat of an environmental disaster or public disaster. These restrictions are a peculiar reaction of the legislator to the well-known events in the former USSR related to the tragedy at the Chernobyl nuclear power plant, the environmental disaster in the Aral Sea region, etc. Society and the state cannot accept such a risk, and responsibility arises in such situations on a general basis, depending on the form of guilt. However, the fact that a person acted under conditions of risk is taken into account by the court as a circumstance mitigating criminal liability and punishment (art. 53 of the Criminal Code of the Republic of Kazakhstan).       Reasonable risk should be distinguished from extreme necessity.      

With a reasonable risk, the subject is a person who is professionally engaged in a particular activity. If absolutely necessary, it can be any person.      

If absolutely necessary, harm is caused to prevent major consequences, and there is no imminent danger in actions involving risk. The forced creation of a dangerous situation is caused by the desire to achieve a significant socially useful goal. Naturally, this goal should mean achieving a much more important result than the possible damage caused by failure.

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

 Constitution Law Code Standard Decree Order Decision Resolution Lawyer Almaty Lawyer Legal service Legal advice Civil Criminal Administrative cases Disputes Defense Arbitration Law Company Kazakhstan Law Firm Court Cases