Commentary to article 36. Physical or mental coercion The Criminal Code of the Republic of Kazakhstan of the Criminal Code of the Republic of Kazakhstan

     1. It is not a crime to cause harm to the interests protected by this Code as a result of physical coercion if, as a result of such coercion, a person could not direct his actions (inaction).      

2. The issue of criminal liability for causing harm to the interests protected by this Code as a result of mental coercion, as well as as a result of physical coercion, as a result of which a person retained the ability to direct his actions, shall be resolved taking into account the provisions of Article 34 of this Code.      

36 of the Criminal Code of the Republic of Kazakhstan, it is not a crime to harm interests protected by criminal law as a result of physical coercion if, as a result of such coercion, a person could not direct his actions (inaction). In other words, these are circumstances in which a person is deprived of the opportunity to act selectively, guided by his consciousness and his own will. In this case, there may be no grounds for bringing a person to criminal responsibility.      

The previous criminal legislation did not know this institution. Its introduction is due to the appearance of non-isolated cases when, under the influence of physical influence, a person commits socially dangerous actions that harm the legitimate interests of citizens and organizations. Article 36 of the Criminal Code defines the legal consequences of actions committed under the influence of coercion. Such acts are not considered a crime.      

Coercion in the dictionary of the Russian language by S. I. Ozhegov is understood as the need to "force a person to do something against his will." Article 36 of the Criminal Code deals with physical coercion.      

The science of criminal law distinguishes between insurmountable physical coercion and surmountable.      

With surmountable physical coercion, the person retains the opportunity to choose behavior. 36 of the Criminal Code refers only to insurmountable physical coercion.      

Irresistible physical coercion is understood as an effect on a person that deprives him of the opportunity to act at his own discretion, i.e. to direct his actions. Physical coercion may consist of torture, physical torture, tying, locking, etc.      

Physical coercion is a circumstance that precludes the criminality of an act if the following conditions are met::      

1) the existence of physical coercion;      

2) the focus of physical coercion on limiting the physical functions of the coerced person;      

3) the validity of physical coercion;      

4) the irresistible nature of physical coercion.      

For the concept of cash and validity, see in the commentary to art. 32 of the Criminal Code of the Republic of Kazakhstan.       The focus of physical coercion on the limitation of physical functions means that physical coercion consists in affecting bodily integrity, as a result of which a person is deprived of the opportunity to direct actions.      

The irresistibility of physical coercion presupposes that a person finds himself in conditions where he is completely deprived of the ability to direct his actions.      

Harm caused by physical coercion should be distinguished from harm caused by force majeure.       Force majeure refers to cases when a person, under the influence of natural forces, animals, mechanisms, people, etc., is unable to perform his duties or other actions or is forced to perform actions that are not conditioned by his will.      

36 of the Criminal Code provides for two types of coercion: physical coercion, as a result of which a person retained the opportunity to direct his actions, and mental coercion. In these cases, the issue of liability is resolved according to the rules on the state of emergency.      

As G.K. Rakhimzhanova rightly pointed out, "the harm caused by such coercion should always be less than that prevented. In addition, harm should be recognized as the only possible way to save a more valuable good."      

Mental coercion is the effect on the will of a person by words, symbols, gestures, demonstration of weapons or their models, that is, a threat. For example, the cashier is being asked for the proceeds at gunpoint. Such actions can cause a person to fear and fear for their life, health, property and the same benefits of their loved ones, for their well-being. Under the influence of such coercion, a person may commit acts stipulated by criminal law. However, under mental coercion, a person always has the opportunity to choose his behavior. If a person commits the required act, then in order to determine whether it is dangerous or not, it is considered according to the rules of extreme necessity.      

If, as a result of physical coercion, a person retains the ability to direct his actions, i.e. the person is not completely deprived of the freedom to choose his actions, but allows him to commit illegal actions (inaction) in order to avoid adverse consequences as a result of coercion applied to him, then the issue of criminal liability of such a person for harming law enforcement interests is resolved according to the rules of extreme necessity (Article 34 of the Criminal Code of the Republic of Kazakhstan). In this case, the person acts (does not act), choosing between the threatened harm and the harm that is necessary to eliminate this threat.      

The threat to take the life of the coerced person himself or her relatives should be considered as mental coercion of the most severe degree. Therefore, if a bank teller, under threat of death, gives criminals the keys to a safe with valuables and tells them the lock code, he acts in a state of extreme necessity.      

It is more difficult to resolve the issue when, under threat of immediate death or threat to kill or torture the victim's children, they are forced to commit murder. The opinion has been expressed in the legal literature that "saving oneself and one's loved ones at the expense of another person's life should be considered as exceeding the limits of extreme necessity, since the ratio of the protected good (life) and the harm caused (deprivation of life) is equivalent.      

Severe physical coercion in the form of torture or threats to life should exclude responsibility for any crime other than murder.      

Causing harm under the influence of hypnosis as a type of mental coercion excludes criminal liability due to the absence of guilt, since the person is deprived of the opportunity to direct his actions.      

It can be said that the issue of criminal liability for actions committed as a result of physical and mental coercion can be solved in three ways: there is an extreme necessity, there is an excess of extreme necessity, and there is an absence of an emergency situation with a low intensity of coercion.      

In all cases of coercion under the influence of physical or mental coercion, there is a circumstance mitigating the punishment (paragraph "g" of part 1 of Article 53 of the Criminal Code).

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

The Criminal Code, Comments to the Criminal Code, the Normative resolution of the Supreme Court, Criminal legislation, Normative legal acts of the Republic of Kazakhstan