Exemption from Criminal Liability Due to Active Repentance

An in-depth and structured legal commentary on Article 65

🔷 1. Legal Nature of the Institution of Active Repentance

Active repentance is a legal mechanism under which a person who has committed a criminal offense may be exempted from criminal liability if he or she:

· actively contributed to the disclosure and investigation of the crime;· voluntarily surrendered and confessed;· compensated for the damage caused.

📌 This institution is aimed at the humanization of criminal policy, encouraging admission of guilt, and reducing repressive measures in cases where punishment may be replaced by other legal measures.

🔷 2. Commentary on Part 1 of Article 65 of the Criminal Code of the Republic of Kazakhstan

“A person who has committed a criminal infraction or has committed a crime for the first time may be exempted…”

🔹 Conditions for application:

1. Category of the offense:

o criminal infraction;o a crime committed for the first time.

2. Forms of active repentance:

o voluntary surrender (independent notification of the authorities);o assistance in solving the crime (providing testimony, helping the investigation);o compensation for damage (restitution, apology, reconciliation with the victim).

3. Consideration of the offender’s personality:

o behavior before and after the offense;o presence of permanent residence and employment;o sincere remorse for the committed act.

📌 As a general rule, this institution is applied at the pre-trial investigation stage; however, in cases of corruption crimes, the decision may be made only by a court.

🔹 Special provision on corruption offenses

“A person who has committed a corruption crime for the first time may be exempted … only by a court.”

📌 This exception strengthens control over the application of exemption in corruption-related cases and prevents abuse at the pre-trial stage.

Example from judicial practice:

A person who, for the first time, gave a bribe in the amount of 50 Monthly Calculation Indices (Article 367, Part 1 of the Criminal Code of the Republic of Kazakhstan) voluntarily surrendered, actively cooperated with the investigation, returned the amount, and testified against the bribe recipient. The court ruled to exempt the person from criminal liability due to active repentance.

🔷 3. Commentary on Part 2 of Article 65 of the Criminal Code of the Republic of Kazakhstan — Exceptions

🔹 Active repentance does not apply if the offense committed is:

🔸 These exclusions are explained by the particularly high social danger of such acts, where exemption from liability without punishment may contradict the interests of justice and the protection of victims.

🔹 Exception to the exceptions (for minors)

“The specified restriction does not apply to minors…”

🔹 A person aged 14 to 18 who has committed a crime against the sexual integrity of another minor may be exempted from criminal liability in the event of active repentance.

📌 This is a humanitarian approach that takes into account the developmental characteristics of adolescents, the possibility of error, and the need for educational rather than punitive measures.

🔷 4. Judicial Practice

✅ Positive example:

A person committed theft for the first time in the amount of 20 Monthly Calculation Indices. The person voluntarily surrendered, returned the property, and apologized. The criminal case was terminated due to active repentance.

❌ Refusal to apply the provision:

A defendant charged with intentional infliction of moderate bodily harm (Article 107 of the Criminal Code of the Republic of Kazakhstan) requested exemption under Article 65. The court refused, as the crime falls within the category of serious crimes against the person to which this provision does not apply.

🔷 5. Related Legal Provisions

🔷 6. International Standards

🔹 UN Tokyo Rules (Rules on non-custodial measures):

· recognize active repentance as an alternative to punishment;· recommend encouraging voluntary confession and cooperation with justice.

🔹 International Covenant on Civil and Political Rights (ICCPR), Article 14:

· guarantees fair treatment and consideration of mitigating circumstances.

🔹 European Court of Human Rights, Scoppola v. Italy (2012):

→ active repentance may serve as grounds for exemption from liability or mitigation of punishment if it is genuine and effective.

🔷 7. Conclusion

Article 65 of the Criminal Code of the Republic of Kazakhstan is a key mechanism for the pre-trial and judicial differentiation of criminal liability, based on:

✅ voluntary admission of guilt;✅ compensation for damage;✅ cooperation with law enforcement authorities.

🔹 It allows for the reduction of excessive criminal repression, strengthens trust in the justice system, and promotes educational rather than punitive influence—especially with regard to minors and first-time offenders.

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