Commentary to article 67. Exemption from criminal liability in connection with reconciliation with the victim of the Criminal Code of the Republic of Kazakhstan of the Criminal Code of the Republic of Kazakhstan
1. A person who has committed a minor crime or who has committed a moderate crime for the first time, which is not related to causing death or serious harm to human health, shall be released from criminal liability if he has reconciled with the victim and has made amends for the damage caused.
2. A person who has committed a crime of moderate gravity may be released from criminal liability if he has reconciled with the victim and has made amends for the damage caused.
This type of exemption from criminal liability is provided for the first time in the current legislation.
Reconciliation of the person who committed the crime with the victim can in fact be considered a kind of active repentance. Firstly, the idea of reconciliation makes it possible to resolve the conflict situation between the victim and the person who committed the criminal act with less procedural and moral costs. Secondly, the contradiction that has arisen is solved by non-repressive measures. Thirdly, it guarantees the restoration of the violated right at the discretion of the victim.
Article 67 of the Criminal Code applies to persons who have committed minor and moderate crimes. When determining the category of crimes - minor and moderate gravity - it is necessary to be guided by the requirements of parts 2 and 3 of art.10 of the Criminal Code.
According to Part 1 of Article 67 of the Criminal Code of the Republic of Kazakhstan, a person who has committed a minor crime is subject to exemption from criminal liability if there are a combination of the following grounds::
a) the act committed by him belongs to the category of crimes of minor gravity;
b) reconciliation of the person who committed the crime with the victim took place;
c) the person who committed the crime has made amends for the damage caused to the victim.
It does not matter if the person committed such a crime for the first time, or if there is a repetition, combination or recidivism of crimes in his actions, whether he has served a sentence under a previous sentence or whether a new crime was committed during the period of serving the sentence, or during probation or postponement of execution of the sentence or the remaining unserved part of the sentence upon parole.
According to the same rule of law, a person who has committed a crime of moderate severity is subject to exemption from criminal liability if there is a combination of the following grounds::
a) the act committed by him belongs to the category of crimes of moderate gravity and is not associated with causing death or serious harm to health;
b) the crime was committed for the first time;
c) reconciliation of the person who committed the crime with the victim took place;
d) the person who committed the crime has repaired the damage caused to the victim.
In the absence of at least one of the listed grounds, the application of Part 1 of Article 67 of the Criminal Code of the Republic of Kazakhstan is unacceptable.
According to Part 2 of Article 67 of the Criminal Code of the Republic of Kazakhstan, a person who has committed any crime of moderate severity, regardless of the consequences, as well as the repetition, totality or recurrence of crimes in his actions, may be released from criminal liability if there are the following grounds:
a) the committed act belongs to the category of crimes of moderate gravity;
b) reconciliation of the person who committed the crime with the victim took place;
c) the person who committed the crime has made amends for the damage caused to the victim.
In the absence of at least one of the listed grounds, the application of Part 2 of Article 67 of the Criminal Code of the Republic of Kazakhstan is unacceptable.
According to the Normative Resolution of the Supreme Court of the Republic of Kazakhstan "On judicial practice on the application of Article 67 of the Criminal Code" dated June 21, 2001, the grounds for termination of the case specified in Article 67 of the Criminal Code do not apply to private prosecution cases, the special procedure for initiating and terminating which in connection with reconciliation of the person who committed the crime with the victim is provided for in Part 2 of Article 32, 33, paragraphs 5,6 of part 1 of Article 37 of the Criminal Procedure Code of the Republic of Kazakhstan.
When deciding on the application of Part 1 of Article 67 of the Criminal Code to a person who has committed a medium-gravity crime that is not related to causing death or serious harm to health, a crime committed for the first time should be understood as an act that a person actually commits for the first time, or an act that is not committed for the first time, but if The person was released from criminal liability or completely released from punishment in accordance with the procedure established by law, or the criminal record was expunged or withdrawn (Article 77 of the Criminal Code).
A person who has committed two or more crimes (in cases of repetition or a real combination of crimes), for none of which the issue of his responsibility has not been resolved, cannot be considered a person who has committed a crime for the first time.
The harm to be compensated by the person who committed the crime should include any harm caused to the victim by the crime: moral, physical and property, while taking into account not only direct but also indirect losses related to the crime, including expenses incurred in connection with participation in the preliminary investigation and in court, including expenses for a representative.
Compensation for harm may be expressed in restoring damaged property, returning stolen or providing equivalent property, paying monetary compensation, purchasing medicines, sanatorium vouchers, apologizing to the victim and in other forms not prohibited by law (paragraph 5 of the Regulatory Decree of the Supreme Court of the Republic of Kazakhstan).
Compensation for the harm caused should be sufficient from the point of view of the victim, not the person who committed the crime. The criminal prosecution authorities and the court have no right to change the victim's claims about the amount of damage to be compensated. If there is a dispute between the parties about the amount of compensation for harm, this indicates that reconciliation has not taken place and, therefore, the person who committed the crime is not subject to release from criminal liability on the basis of art.67 of the Criminal Code.
For the application of Article 67 of the Criminal Code, it does not matter by whom the harm was repaired: by the person who committed the crime, or at his request by relatives, other persons or organizations.
Reconciliation is expressed in the victim's request to terminate the criminal case initiated against the person who committed the crime. The victim's will is made out in a written statement or reflected in the protocol of his interrogation at the stage of the preliminary investigation or in the protocol of the court session (paragraph 7 of the Normative Resolution of the Supreme Court of the Republic of Kazakhstan).
Reconciliation with the person who committed the crime, a minor victim (from 14 to 18 years old) or recognized as having limited legal capacity is possible only with the consent of the victim's legal representative.
If the victim is a minor (under the age of 14), as well as a citizen who has been declared legally incompetent, their rights in full, including the right to reconciliation, are exercised by legal representatives.
In cases of moderate crimes, the consequence of which was death or serious harm to human health, it is possible to apply part 2 of art.67 of the Criminal Code. According to Part 11 of Article 75 of the CPC, in cases of crimes related to causing death, close relatives of the deceased who suffered moral harm from the crime may be recognized as victims, and they have the right to reconcile with the person who committed these crimes, provided there are grounds provided for in Article 67 of the Criminal Code.
The victim's close relatives are his parents, children, adoptive parents, adopted children, full and half-siblings, grandfather, grandmother, and grandchildren. This list of persons contained in paragraph 24 of Article 7 of the CPC is exhaustive and is not subject to extensive interpretation (paragraph 12 of the Regulatory Decree of the Supreme Court of the Republic of Kazakhstan). In accordance with the law, the norm provided for in Part 1 of Article 67 of the Criminal Code is mandatory for application by the criminal prosecution authorities and the court if there are a set of grounds specified in it for releasing a person from criminal liability (paragraph 13 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan).
Contradicting paragraph 13 of the Normative Resolution of the Supreme Court of the Republic of Kazakhstan "On judicial practice on the application of Article 67 of the Criminal Code" is paragraph 15 of the same resolution, which states: In accordance with Part 1 of Article 38 of the Criminal Procedure Code, if there are grounds for the application of Article 67 of the Criminal Code, the court has the right to terminate a criminal case (this is not a right, but a duty of the court - italics my I.B.) or to pass a guilty verdict with the release of the person who committed the crime from criminal liability.
There is a contradiction between Article 67 of the Criminal Code and Article 38 of the CPC. In my opinion, these contradictions should be eliminated by both the legislator and the Supreme Court of the Republic of Kazakhstan, since such a situation significantly affects the observance of the principles of legality and justice.
67 of the Criminal Code, in the presence of a set of grounds provided for by law, is not excluded in cases where a person has committed a grave or especially grave crime along with minor or moderate crimes, if his reconciliation with victims of minor and moderate crimes has taken place. At the same time, the proceedings on a serious or especially serious crime continue in accordance with the CPC.
In cases of minor or moderate crimes committed in complicity, the application of Article 67 of the Criminal Code is possible only for those persons who have reconciled with the victim. The proceedings against the accomplices of the crime, who have not reached reconciliation with the victim, continue in accordance with the Criminal Procedure Code of the Republic of Kazakhstan.
When a person commits several crimes of low or medium severity, his release from criminal liability is possible under certain episodes of prosecution in which reconciliation with the victim took place, using Article 67 of the criminal code. For the remaining episodes of prosecution, in which the person who committed the crime did not achieve reconciliation with the victims, the proceedings will continue in accordance with the CPC (paragraphs 13-2 of the normative resolution of the Supreme Court of the Republic of Kazakhstan).
Honored Worker of the Republic of Kazakhstan, doctor of law, professor, academician of the National Academy of Natural Sciences of Kazakhstan
BORCHASHVILI I. SH.
Commentary on the Criminal Code of the Republic of Kazakhstan for 2007
Date of amendment of the act: 02.08.2007 date of adoption of the act: 02.08.2007 place of adoption: no body that adopted the act: 180000000000 area of action: 10000000000000 NLA registration number issued by the normative body: 167 act status: new field of legal relations: 0280000000000 act form: COMM legal force: 1900 Act language: rus
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