Intentional Infliction of Minor Harm to Health on the Motive of Social, National, Racial, or Religious Hatred or Enmity

I. REGULATORY BASIS FOR QUALIFICATION

1. Principal provision — Part 2 of Article 108-1 of the Criminal Code of the Republic of Kazakhstan

Article 108-1 of the Criminal Code of the Republic of Kazakhstan on ZakonPravo.kz establishes liability for intentionally inflicting minor harm to health.

Part 1 covers the basic elements of the offense.

Part 2 establishes a qualified offense where the act is committed, inter alia:

“on the motive of social, national, racial, or religious hatred or enmity.”

The sanction under Part 2 of Article 108-1 of the Criminal Code provides for:

• a fine of up to 1,000 MCI;
• corrective labor in the same amount;
• community service for up to 600 hours;
• restriction of liberty for up to 2 years;
• imprisonment for up to 2 years. (Law and Practice)

Thus, it is precisely the qualifying motive that transfers the act from the basic offense to Part 2 of Article 108-1 of the Criminal Code.

II. LEGAL STRUCTURE OF THE ELEMENTS OF THE OFFENSE

For the correct qualification, four elements must be established simultaneously:

1. the object;
2. the objective element;
3. the subject;
4. the subjective element.

Moreover, in the present case, the subjective element is of fundamental importance, since it is necessary to prove not only the intentional infliction of minor harm to health, but also the special qualifying motive.

2. Object of the Offense

The immediate object is human health.

The protection of the principle of equality and the prohibition of discrimination is also of additional significance.

This is directly related to Article 14 of the Constitution of the Republic of Kazakhstan: the Constitution prohibits discrimination on grounds of origin, social, official and property status, sex, race, nationality, language, attitude toward religion, beliefs, and other circumstances. (Law and Practice)

Consequently, the offense in question protects not only the physical health of a particular victim, but also social relations associated with the inadmissibility of violence motivated by a person’s belonging to a particular social, national, racial, or religious group.

III. WHAT EXACTLY CONSTITUTES THE “MOTIVE OF HATRED OR ENMITY”

This is the most difficult part of the qualification.

3.1. Not every insult can automatically be regarded as an indication of hatred

For example:

“You deceived me, so I hit you.”

As a rule, this indicates a personal conflict.

A different situation would be:

“I hit you because you [belong to a particular nationality/religion/social group].”

Here, a potentially qualifying motive arises.

However, a single statement made after a conflict is not automatically sufficient. The court must establish an actual causal connection between the victim’s belonging to the relevant group and the perpetrator’s decision to use violence.

3.2. The motive must be proven

An important clarification is contained in the regulatory resolution of the Supreme Court of the Republic of Kazakhstan concerning the qualification of crimes against life and health.

With regard to a similar qualifying element, the Supreme Court indicates the need to establish evidence that precisely the victim’s belonging to a particular part of the population or the victim’s religious affiliation constituted the motive for committing the offense.

In particular, the Supreme Court has formulated the approach that it is necessary to establish that precisely the victim’s belonging to a particular nationality, race, or religion constituted the motive for the crime. (ZakonPravo Mail)

This legal position is directly applicable when interpreting the qualifying motive under Part 2 of Article 108-1 of the Criminal Code.

IV. DISTINCTION BETWEEN THE MOTIVE OF HATRED AND PERSONAL HOSTILITY

This is one of the principal issues for the defense.

Suppose:

A. and B. have been in conflict for a long time.

A. struck B.

During the conflict, A. shouted an insult of a national character.

The question arises:

was the victim’s national affiliation the reason for the attack, or was the relevant expression merely an emotional reaction to an already existing personal conflict?

The answer cannot be given solely on the basis of the existence of an offensive statement.

The following must be examined:

• who initiated the conflict;
• what happened immediately before the blow;
• whether there had been previous conflicts;
• whether there had previously been statements concerning nationality/religion;
• what the accused said before the attack;
• what the accused said during the attack;
• what the accused said after the attack;
• whether there are messages in messengers;
• publications on social media;
• the presence of relevant symbols;
• the accused’s relations with other persons belonging to the relevant group;
• whether the accused selected the victim specifically on the basis of the victim’s belonging to the group;
• whether the attack could have occurred regardless of the victim’s nationality, religion, or social affiliation.

V. OBJECTIVE ELEMENT

The objective element of Part 2 of Article 108-1 consists of:

1. an act;
2. consequences in the form of minor harm to health;
3. a causal connection;
4. a qualifying circumstance — the motive of hatred or enmity.

The infliction of harm may be expressed in:

• a punch;
• a kick;
• a blow with an object;
• a push resulting in the relevant injury;
• other intentional actions.

At the same time, for distinguishing this offense from Article 109-1 of the Criminal Code, it is necessary to determine the medical degree of the harm caused.

VI. DISTINCTION FROM BATTERY — ARTICLE 109-1 OF THE CRIMINAL CODE

Article 109-1 of the Criminal Code of the Republic of Kazakhstan — Battery regulates situations where violent acts caused physical pain, but did not result in minor harm to health. (Law and Practice)

The regulatory resolution of the Supreme Court expressly explains:

• if the blows inflicted caused only physical pain without short-term impairment of health or insignificant permanent loss of general working capacity — this constitutes battery;
• if the consequences meet the criteria for minor harm to health — Article 108-1 applies;
• battery and minor harm to health may be covered by the offense of torture if the elements of Article 110 of the Criminal Code are present. (Adilet)

This is of practical importance: the expert opinion must be examined not formally, but in conjunction with the circumstances in which the injuries were sustained.

VII. FORENSIC MEDICAL EXAMINATION

A forensic medical examination is required to determine the severity of the harm caused to health.

The Supreme Court specifically emphasizes the need for an appropriate forensic examination to determine the nature and degree of harm to health. (Law and Practice)

Therefore, the following must be examined in the case:

• medical documents;
• medical visit/consultation record;
• medical history;
• X-ray/CT/MRI results, if available;
• conclusion of the forensic medical expert;
• treatment periods;
• duration of the health disorder;
• degree of loss of general working capacity;
• causal connection between the injuries and the specific incident.

VIII. SUBJECTIVE ELEMENT

The subjective element has a dual structure:

1. Intent with respect to causing harm

The person must be aware of the nature of his or her actions and desire or consciously allow the infliction of harm to health.

2. Special motive

For Part 2 of Article 108-1, it must be established that the act was motivated by:

• social hatred;
• national hatred;
• racial hatred;
• religious hatred;
• or corresponding enmity.

It is precisely the second component that constitutes the principal distinction between the qualified offense and Part 1.

IX. JURISDICTION OVER PRE-TRIAL INVESTIGATION

There is a very important practical feature here.

Article 191 of the Criminal Procedure Code of the Republic of Kazakhstan expressly classifies Part 2 of Article 108-1 of the Criminal Code as a criminal offense in respect of which an inquiry is conducted by the internal affairs bodies. (Law and Practice)

Accordingly, as a general rule:

internal affairs body → inquiry → prosecutor → court.

This differs from Part 1 of Article 108-1, which constitutes a criminal misdemeanor and is subject to a special protocol-based procedure for pre-trial investigation. (Law and Practice)

Preserve the Original NumberingUse Consistent Legal Terminology

X. JURISDICTION

10.1. Court of First Instance

Article 306 of the Criminal Procedure Code of the Republic of Kazakhstan — jurisdiction of district courts establishes that district and equivalent courts hear criminal cases as courts of first instance, except for cases assigned to specialized courts. (Law and Practice)

Since Part 2 of Article 108-1 of the Criminal Code does not fall within the special jurisdiction of the Specialized Interdistrict Court for Criminal Cases, the case, as a general rule, falls within the jurisdiction of:

a district or equivalent court.

10.2. If the Accused Is a Minor

If the criminal offense was committed by a minor, the special jurisdiction of the Specialized Interdistrict Juvenile Court applies.

Article 307 of the Criminal Procedure Code of the Republic of Kazakhstan provides for such personal jurisdiction over criminal offenses committed by minors. (Law and Practice)

XI. JURISDICTION BY SUBJECT MATTER

The term “jurisdiction by subject matter” should be used with caution in this case.

These are criminal procedural relations, rather than administrative or civil proceedings.

Therefore:

• the Administrative Procedural and Process-Related Code of the Republic of Kazakhstan does not apply to determining guilt;
• the Civil Procedure Code of the Republic of Kazakhstan does not apply instead of the Criminal Procedure Code for criminal prosecution;
• criminal prosecution is carried out in accordance with the procedure established by the Criminal Procedure Code;
• a civil claim for compensation for harm may be considered within the criminal case.

XII. CASE OF PRIVATE-PUBLIC PROSECUTION

This is a fundamentally important feature.

Article 32 of the Criminal Procedure Code of the Republic of Kazakhstan expressly classifies Part 2 of Article 108-1 of the Criminal Code as cases of private-public prosecution. (Law and Practice)

This means:

the proceedings are initiated only upon a complaint by the victim.

However, this does not mean that after registration of the case the victim becomes a “private prosecutor” and the State completely withdraws from the prosecution.

On the contrary, after the criminal proceedings have commenced:

• state criminal prosecution is carried out;
• the prosecutor exercises supervision;
• the investigative body collects evidence;
• the final decision is made by the court.

XIII. WHEN THE VICTIM’S COMPLAINT IS NOT MANDATORY

Part 4 of Article 32 of the Criminal Procedure Code provides for exceptions.

The prosecutor may initiate or continue proceedings without the victim’s complaint if:

• the victim is in a helpless condition;
• the victim is in a dependent condition;
• the victim, for other reasons, is unable to exercise his or her rights independently;
• the case affects the interests of society or the State. (Law and Practice)

In cases where there is a motive of national, racial, or religious hatred, the issue of public interest becomes particularly important.

XIV. PRE-TRIAL PROCEDURE

In the classical sense, there is no mandatory pre-trial claim procedure here.

The victim cannot be required to:

first send a claim to the perpetrator, wait for a response, and then contact the police.

Such a procedure is not established for criminal prosecution under Article 108-1.

However, there is a procedural prerequisite — a complaint by the victim in accordance with Article 32 of the Criminal Procedure Code.

That is:

Not required:

• a claim;
• negotiations;
• a preliminary civil demand;
• recourse to a mediator.

May be required:

• a statement/complaint by the victim;
• medical documentation;
• documentation of injuries;
• an indication of the circumstances of the conflict;
• information concerning the possible motive of hatred.

XV. RECONCILIATION

This is one of the most important issues.

15.1. Article 68 of the Criminal Code

Article 68 of the Criminal Code of the Republic of Kazakhstan — reconciliation provides for exemption from criminal liability upon reconciliation and redress of harm for offenses of minor or medium gravity that are not related to causing death. (Law and Practice)

Part 2 of Article 108-1 is an intentional offense of minor gravity, since the maximum punishment does not exceed two years of imprisonment. This follows from Article 11 of the Criminal Code. (Law and Practice)

Therefore, as a general rule, Part 2 of Article 108-1 may be terminated due to reconciliation.

XVI. HOWEVER, THERE IS A VERY IMPORTANT RESTRICTION

Article 68 of the Criminal Code contains a special restriction for persons who have previously been exempted from criminal liability due to reconciliation.

It is expressly provided that the provisions of Article 68 do not apply to a person who committed a criminal offense provided for by Article 108-1 or 109-1 during the limitation period following a previous exemption from criminal liability due to reconciliation. (Law and Practice)

That is, it is necessary to check:

1. whether there was a previous criminal case;
2. under which article;
3. when it was terminated;
4. on what grounds;
5. whether Article 68 of the Criminal Code was applied;
6. when the new act was committed.

XVII. MEDIATION

Mediation is permitted.

Article 24 of the Law of the Republic of Kazakhstan “On Mediation” establishes special rules for mediation in criminal proceedings. (Law and Practice)

The fundamental provisions are:

• conclusion of a mediation agreement does not suspend the criminal case;
• participation in mediation by itself does not constitute an admission of guilt;
• refusal to conclude an agreement may not worsen the position of the participant;
• the agreement is submitted to the body conducting the criminal proceedings.

At the same time, the court and criminal prosecution authorities may not compel the parties to mediation. (Law and Practice)

XVIII. SUPREME COURT PRACTICE ON RECONCILIATION

The regulatory resolution of the Supreme Court on the application of Article 68 of the Criminal Code is of enormous importance.

The Supreme Court indicates the need for a combination of three conditions:

1. the offense falls under Article 68;
2. reconciliation has taken place;
3. the harm has actually been redressed. (Law and Practice)

Moreover:

the existence of a dispute between the parties regarding the amount of compensation for harm indicates that reconciliation has not taken place.

The harm must also be actually redressed, rather than merely promised.

XIX. PERSONS PARTICIPATING IN THE CASE

The main participants are:

For the prosecution:

• prosecutor;
• inquiry body;
• inquiry officer;
• victim;
• victim’s representative;
• civil claimant.

For the defense:

• suspect;
• accused;
• defendant;
• defense counsel;
• civil defendant — if the relevant civil claim has been filed.

XX. VICTIM

Article 71 of the Criminal Procedure Code of the Republic of Kazakhstan — victim defines a victim as a person to whom moral, physical, or property harm has been directly caused by a criminal offense. (Law and Practice)

In this case, the victim is the person who sustained bodily injuries.

He or she has the right to:

• give testimony;
• present evidence;
• file motions;
• receive assistance from a representative;
• file a civil claim;
• examine the case materials;
• appeal decisions;
• participate in the court proceedings;
• reconcile with the suspect/accused;
• demand compensation for harm.

XXI. SUSPECT/ACCUSED

The right to protection against the unfounded imputation of a motive of hatred is particularly important.

The accused may:

• deny the motive;
• refer to a personal conflict;
• present evidence of previous conflictual relations;
• present correspondence;
• request the examination of witnesses;
• challenge the reliability of the victim’s testimony;
• raise the inadmissibility of evidence;
• request the exclusion of evidence.

XXII. PROOF

In cases of this category, the subject matter of proof can conditionally be divided into four blocks.

Block 1. The fact of the attack itself

It may be proven by:

• video recordings;
• testimony;
• eyewitnesses;
• correspondence;
• audio recordings;
• inspection report;
• physical evidence.

Block 2. Harm caused

The following are of primary importance:

• forensic medical examination;
• medical documents;
• photographs;
• examination results.

Block 3. Intent

It is necessary to establish:

• the nature of the blow;
• the number of blows;
• the object used;
• the location of the blows;
• the person’s conduct before and after the attack.

Block 4. Motive of hatred

It is precisely here that the most complex body of evidence arises.

XXIII. EVIDENCE OF THE MOTIVE OF HATRED

The following evidence may be relevant:

1. Statements made by the accused

For example:

• during the conflict;
• immediately before the attack;
• while delivering the blows;
• after the attack.

2. Correspondence

WhatsApp, Telegram, Instagram, TikTok, Facebook, and other electronic data may be relevant, provided that the procedural requirements for their obtaining and inclusion in the case are complied with.

3. Video recording

A recording is particularly valuable if it captures:

• the period before the conflict;
• the beginning of the conflict;
• the moment the blow was delivered;
• the conduct immediately afterwards.

4. Witnesses

Witnesses who heard the conversation immediately before the attack are particularly important.

5. Previous publications

Publications made by the accused may be relevant to establishing the motive; however, by themselves they do not automatically prove the motive of a specific crime.

XXIV. INADMISSIBLE EVIDENCE

Article 112 of the CPC RK establishes the rules governing the inadmissibility of evidence. (Zakon i Pravo)

In particular, inadmissibility may arise if the information was obtained:

• through the use of violence;
• through threats;
• through deception;
• with a substantial violation of the procedural procedure;
• from an unknown source;
• using methods contrary to modern scientific knowledge;
• with a substantial violation of the rights of participants.

For the defense in cases involving a motive of hatred, this is particularly important, since the prosecution may sometimes be based on:

“a witness said that the accused had previously had a negative attitude toward a certain group.”

It is necessary to establish:

• how the witness knows this;
• when the witness heard it;
• under what circumstances;
• to whom exactly it was said;
• whether primary sources exist.

XXV. TESTIMONY OF THE VICTIM

Article 115 of the CPC RK is of fundamental importance. (Zakon i Pravo)

The accused’s admission of guilt, in itself, is insufficient.

The law expressly establishes that an admission of guilt by the suspect may form the basis of the accusation only if confirmed by the totality of evidence.

This is particularly important in the case of an admission:

“Yes, I hit him, but there was no national/religious hatred.”

In such a case, the State must prove specifically the qualifying motive.

XXVI. PROOF OF THE MOTIVE: THE MAIN POSITION OF THE DEFENSE

If the fact that the blow was inflicted is obvious, but the motive of hatred has not been proven, the question arises:

Can the court independently reclassify Part 2 as Part 1?

Yes. Where the circumstances of the case are established and the qualifying element has not been proven, the court is not bound by the accusation with regard to the legal assessment of the facts and must give the act the proper criminal-law qualification.

In practice, this means:

the dispute in the case may shift from the question “was there a blow?” to the question “why was the blow inflicted?”.

XXVII. DISTINCTION FROM A HOOLIGAN MOTIVE

Part 2 of Article 108-1 contains simultaneously:

• paragraph 5 — hooligan motives;
• paragraph 6 — a motive of social, national, racial, or religious hatred or enmity.

These are independent qualifying circumstances.

Hooligan motive

Is generally associated with demonstrative disregard for society and public order.

Motive of hatred

Is associated with the victim’s belonging to a particular group.

They must not be conflated.

XXVIII. CAN THERE BE A COMBINATION?

Theoretically, one conflict may simultaneously contain several qualifying circumstances, for example:

• a group of persons;
• a hooligan motive;
• national hatred.

However, the court must establish the independent existence of each element and must not mechanically list all the circumstances of the accusation.

XXIX. SOCIAL HATRED

This term is broader than national or racial affiliation.

It must be established:

• which particular social group the accused had in mind;
• whether the accused perceived the victim as a representative of that group;
• whether this circumstance was the reason for the violence.

For example, a conflict between:

employee — employer

cannot automatically be transformed into a crime committed out of a motive of social hatred.

It is necessary to prove hatred toward the social group as such, rather than an individual employment-related or property dispute.

XXX. NATIONAL HATRED

It is necessary to establish:

1. the victim’s belonging to a particular nationality;
2. the accused’s awareness of this;
3. a negative attitude toward that national group;
4. the connection between such attitude and the specific attack.

For example:

“I hit you because you stole my money”

does not constitute a national motive, even if the parties belong to different nationalities.

If it is established that:

“I hit you precisely because you are [a representative of a particular nationality]”

and this is supported by objective evidence, there is a basis for considering paragraph 6 of Part 2 of Article 108-1.

XXXI. RELIGIOUS HATRED

It is particularly important to carefully distinguish between:

• criticism of religious beliefs;
• a dispute over religion;
• personal dislike;
• insult of a specific person;
• religious hatred itself as a motive for violence.

For qualification under paragraph 6, it is necessary to establish that religious affiliation was a substantial reason for committing the violence.

XXXII. CONSTITUTIONAL PROVISIONS

The Constitution of the Republic of Kazakhstan on ZakonPravo.kz is of direct relevance. (Zakon i Pravo)

In particular:

Article 14

Prohibition of discrimination.

Article 17

Human dignity is inviolable.

Article 13

The right to judicial protection.

Article 18

The right to privacy and protection of personal rights.

These provisions form the constitutional framework for interpreting Article 108-1.

XXXIII. INTERNATIONAL PROVISIONS

Kazakhstan is a party to international treaties in the field of protection against racial discrimination.

In particular, Kazakhstan ratified the International Convention on the Elimination of All Forms of Racial Discrimination on August 26, 1998. This is confirmed by the database of UN treaty bodies and Kazakhstan’s latest State report.

The following are relevant to the category of cases under consideration:

International Covenant on Civil and Political Rights

The following provisions are of particular importance:

• Article 2 — ensuring rights without discrimination;
• Article 7 — prohibition of cruel treatment;
• Article 14 — fair trial;
• Article 20 — prohibition of advocacy of national, racial or religious hatred;
• Article 26 — equality before the law.

CERD

The Convention requires States to provide effective protection against racial discrimination.

However, international provisions do not replace national criminal-law qualification: a specific act is qualified under the Criminal Code of the Republic of Kazakhstan.

XXXIV. CIVIL CLAIM IN CRIMINAL PROCEEDINGS

This is a separate block.

Article 166 of the CPC RK — civil claims considered in criminal proceedings allows claims for compensation of:

• property damage;
• moral harm;
• medical treatment expenses;
• funeral expenses;
• other directly related expenses;
• representation expenses. (ZakonPravo Mail)

XXXV. STATE DUTY

As a matter of principle:

when filing a civil claim within a criminal case, the victim is exempt from payment of the state duty.

This is expressly provided for by the CPC; the current version of the CPC also contains this rule. (Adilet)

Therefore, if the victim states in criminal proceedings:

to recover KZT 2,000,000 in compensation for moral harm,

the victim does not pay the state duty when initially filing the civil claim within the criminal case.

If the same claim is subsequently filed independently in civil proceedings, the issue of the state duty is governed by the Civil Procedure Code and the Tax Code.

XXXVI. TIME LIMIT FOR FILING A CIVIL CLAIM

This is often incorrectly interpreted.

The Regulatory Resolution of the Supreme Court on civil claims in criminal proceedings establishes that:

a civil claim may be filed at any time from the commencement of the pre-trial investigation, but before the completion of the judicial investigation.

(Zakon i Pravo)

That is, this is not the ordinary three-year procedural time limit for filing a claim.

In practice:

until the completion of the judicial investigation in the court of first instance — a civil claim may be filed within criminal proceedings.

XXXVII. “RESTORATION OF THE TIME LIMIT” FOR A CIVIL CLAIM

Here, an important clarification must be made.

For filing a civil claim in a criminal case, there is no classic limitation period that the court restores for a valid reason.

If the judicial investigation has already been completed, the issue must be resolved differently:

1. either the court resolves the issue in the procedure provided for by the CPC, if procedurally possible;
2. or the claim is filed separately in civil proceedings.

The statement itself:

“I missed the time limit for filing a civil claim in a criminal case and ask for its restoration”

is not a precise procedural construction.

XXXVIII. MORAL HARM

This is particularly important for a case involving the infliction of minor harm to health.

Regulatory Resolution No. 7 of the Supreme Court dated November 27, 2015 explains that health, dignity, freedom, and personal inviolability constitute personal non-property benefits, the violation of which may entail moral harm. (Zakon i Pravo)

The victim may claim:

• compensation for physical suffering;
• compensation for moral suffering;
• compensation resulting from humiliation of dignity;
• compensation for other consequences of violation of personal non-property rights.

XXXIX. LIMITATION PERIOD FOR MORAL HARM

The situation here differs substantially from the general rule.

The Supreme Court indicates that, pursuant to Article 187 of the Civil Code, claims for compensation for moral harm are generally not subject to a limitation period, except for cases specifically established by law. (ZakonPravo Mail)

Consequently, a claim for compensation for moral harm caused by harm to health cannot automatically be rejected as having been filed after the expiration of the general limitation period.

XL. AMOUNT OF MORAL HARM

There is no fixed “tariff scale.”

The court takes into account:

• the nature of the violation;
• the degree of physical suffering;
• the duration of treatment;
• the consequences;
• the form of guilt;
• the degree of violation of personal benefits;
• the circumstances of the conflict;
• the individual characteristics of the victim;
• other confirmed circumstances.

The Supreme Court indicates that the amount of compensation should be determined based on the criteria of reasonableness and fairness. (ZakonPravo Mail)

XLI. PRACTICE ON COMPENSATION FOR MORAL HARM

The materials published by ZakonPravo contain judicial practice in which courts awarded compensation for moral harm in connection with bodily injury.

For example, a decision of the Aksu City Court of Pavlodar Region dated April 6, 2015 is cited, by which a claim for compensation for moral harm was partially satisfied and KZT 70,000 was awarded. (Zakon i Pravo)

However, these amounts cannot be used as a fixed benchmark for a modern case under Part 2 of Article 108-1, since the amount of compensation is individual.

XLII. MEASURES OF PROCEDURAL COERCION

Article 155 of the CPC RK provides for various measures of procedural coercion. (Zakon i Pravo)

Including:

• obligation to appear;
• compulsory appearance;
• temporary suspension from office;
• seizure of property;
• prohibition on approaching;
• monetary penalty.

XLIII. PROHIBITION ON APPROACHING

This is particularly important for conflict situations involving a threat of repeated violence.

If there are grounds to believe that the accused:

• will stalk the victim;
• will continue the conflict;
• will exert pressure;
• threatens the victim or witnesses,

the issue of applying the relevant procedural measure may be considered.

XLIV. PREVENTIVE MEASURES

The mere fact of being charged under Part 2 of Article 108-1 does not automatically mean detention in custody.

The maximum sanction is two years.

The court and the criminal procedure authority must take into account the necessity, proportionality, and procedural grounds for applying a preventive measure.

In practice, in such cases the following are usually more significant:

• obligation to appear;
• prohibition on approaching;
• other less restrictive measures,

if there are no circumstances indicating a risk of absconding, continuing criminal activity, obstructing the investigation, etc.

XLV. LIMITATION PERIOD

Article 11 of the Criminal Code of the Republic of Kazakhstan — categories of crimes classifies intentional crimes for which the maximum punishment does not exceed two years of imprisonment as minor-gravity crimes. (Zakon i Pravo)

Therefore:

Part 2 of Article 108-1 of the Criminal Code — a minor-gravity crime.

Limitation period — 2 years

Article 71 of the Criminal Code of the Republic of Kazakhstan — limitation periods establishes:

• 1 year — criminal misdemeanor;
• 2 years — minor-gravity crime;
• 5 years — medium-gravity crime;
• 10 years — grave crime;
• 15 years — especially grave crime. (Zakon i Pravo)

The period is calculated from the date the offense was committed until the moment the judgment enters into legal force.

XLVI. IF THE PERSON GOES INTO HIDING

If the person goes into hiding from the investigation or the court, the limitation period shall be suspended.

For a minor-gravity crime, a special threshold of five years is provided in cases of the person going into hiding. (Law and Law)

Therefore:

“two years have passed — the case is automatically terminated”

cannot be concluded mechanically.

It is necessary to establish:

• when the crime was committed;
• when the case was registered;
• whether the suspect went into hiding;
• whether the suspect was placed on the wanted list;
• whether the person evaded the court;
• whether there were procedural grounds for suspending the period.

XLVII. SUPREME COURT PRACTICE REGARDING THE MOTIVE OF HATRED

Here, it is necessary to distinguish direct and analogous practice.

Direct practice under Part 2 of Article 108-1

The provision was introduced only on June 16, 2024; therefore, as of the time of preparation of this commentary, it was not possible to identify extensive published Supreme Court practice formed specifically under Paragraph 6 of Part 2 of Article 108-1.

Analogous practice

The Supreme Court's approach regarding:

• Article 99 of the Criminal Code — murder;
• Article 106 of the Criminal Code — grievous harm;
• Article 107 of the Criminal Code — harm of medium gravity

is considerably more developed.

In these offenses, the qualifying element of hatred is formulated in a similar manner.

XLVIII. KEY LEGAL POSITION OF THE SUPREME COURT

The Supreme Court requires establishing that the victim's belonging to the relevant group was precisely the motive for the crime. (LawPravo Mail)

This makes it possible to formulate the following important practical test:

Question No. 1

Did the fact of the victim's belonging to a particular group exist?

Question No. 2

Did the accused know about this?

Question No. 3

Did the accused have a negative attitude toward this group?

Question No. 4

Was this directly manifested immediately before the crime was committed?

Question No. 5

Was this attitude the reason for the attack?

Question No. 6

Is there objective evidence of this causal relationship?

If the last element is absent, qualification based on the motive of hatred becomes considerably vulnerable.

XLIX. PRACTICE OF COURTS OF FIRST INSTANCE

For cases of this kind at first instance, three groups of issues are of particular importance.

The first

Has the infliction of minor harm been established?

The second

Has intent been established?

The third

Has the qualifying motive been established?

At the same time, the third issue must not be absorbed by the first two.

It may be proven that:

the person intentionally struck the victim;

but this does not automatically lead to the conclusion that:

the person struck the victim out of a motive of national/religious hatred.

L. APPELLATE PRACTICE

The appellate court has the possibility to examine:

• whether the circumstances have been proven;
• whether the evidence is admissible;
• whether the qualification is correct;
• the court's conclusions regarding the motive;
• the civil claim;
• the punishment.

The following issue is particularly important:

did the court of first instance reach the conclusion regarding the motive of hatred solely on the basis of a subjective assessment of the conflict?

If the objective evidence is insufficient, the defense is entitled to raise the issue of incorrect qualification.

LI. CASSATION LEVEL

When the matter is considered in cassation proceedings, the following become particularly important:

• material violations of the law;
• incorrect application of criminal law;
• material procedural violations;
• lack of grounds for the conclusions concerning the qualifying element.

For the new elements of Article 108-1, it is particularly important to monitor the future legal positions of the cassation court and the Supreme Court.

LII. EXAMPLE NO. 1 — NATIONAL HATRED PROVEN

For example:

Two persons have a conflict.

Before striking the victim, the accused repeatedly refers to the victim's belonging to a particular nationality and states that he hates the victim precisely for that reason.

The video recording captures these statements.

Three witnesses confirm the content of the conversation.

The victim sustains minor harm.

A forensic examination confirms the degree of harm.

In this case, there is an aggregate of evidence:

strike + minor harm + intent + motive of national hatred.

There is a specific factual basis for qualification under Paragraph 6 of Part 2 of Article 108-1.

LIII. EXAMPLE NO. 2 — PERSONAL CONFLICT

A landlord demands payment of a debt.

The tenant refuses.

A conflict arises.

The landlord strikes the tenant.

The parties had previously had conflicts several times.

No statements of a national or religious nature were established.

Despite the parties belonging to different nationalities, there is no evidence proving that the national difference itself was the reason for the attack.

In such a case, the parties' nationality by itself does not turn the conflict into a crime committed out of a motive of national hatred.

LIV. EXAMPLE NO. 3 — INSULT DURING A CONFLICT

During a domestic conflict, the accused uses an insult of a national nature and strikes the victim.

The defense states:

the insult was an emotional reaction, while the reason for the conflict was a property claim.

The prosecution states:

the insult proves national hatred.

In such a case, the court must examine not merely one statement, but the entire context.

LV. EXAMPLE NO. 4 — SOCIAL GROUP

For example, the victim belongs to a particular social group.

The accused had previously published materials calling for violence against members of this group.

Then, knowing that the victim belonged to this group, the accused attacks the victim.

In this case, the following have evidentiary significance:

• publications;
• correspondence;
• statements made in advance;
• the selection of the victim;
• statements made directly during the attack.

LVI. IMPORTANT DISTINCTION FROM ARTICLE 174 OF THE CRIMINAL CODE OF THE REPUBLIC OF KAZAKHSTAN

Depending on the circumstances, one physical attack alone may not be sufficient for qualification under Article 174 of the Criminal Code.

Article 174 covers acts aimed at inciting social, national, tribal, racial, class-based, or religious hatred, as well as the relevant forms of socially dangerous conduct.

In its earlier commentaries on Article 164 of the previous version of the Criminal Code, ZakonPravo explained that violence may constitute one of the methods of committing the relevant crime where it is aimed at inciting hatred. (Law and Law)

Therefore, it is necessary to establish:

was the violence directed against a specific person as a result of a motive of hatred — or was it part of broader acts aimed at inciting hatred.

This may be relevant to the issue of the aggregate of criminal offenses.

LVII. ARTICLES 108-1 AND 107 OF THE CRIMINAL CODE OF THE REPUBLIC OF KAZAKHSTAN

If the forensic examination establishes harm of medium gravity rather than minor harm, the qualification changes.

Article 107 of the Criminal Code of the Republic of Kazakhstan contains a similar qualifying element based on the motive of social, national, racial, or religious hatred/hostility. (Law and Law)

Therefore, the defense must carefully verify:

is the prosecution attempting to artificially maintain a more serious qualification without sufficient medical grounds?

LVIII. ARTICLE 106 OF THE CRIMINAL CODE OF THE REPUBLIC OF KAZAKHSTAN

If the consequence constitutes grievous harm, Article 106 applies.

A similar motive of hatred is also provided for therein. (Law and Law)

Thus, the degree of harm and the motive are two independent criteria of qualification.

LIX. ARTICLE 110 OF THE CRIMINAL CODE OF THE REPUBLIC OF KAZAKHSTAN — TORTURE

If the attacks are committed systematically and cause particular physical or mental suffering, Article 110 of the Criminal Code must be considered.

Article 110 of the Criminal Code of the Republic of Kazakhstan provides for individual criminal liability, including liability for committing the act out of a motive of social, national, racial, or religious hatred. (Law and Law)

At the same time, the Supreme Court directly explains that where beating and the infliction of minor harm are encompassed by the elements of torture, additional qualification under Articles 108-1/109-1 is not required. (Adilet)

LX. EVIDENCE THAT THE VICTIM SHOULD COLLECT

If the position is to prove the motive of hatred, in practice it is advisable to ensure the collection of the following:

Medical block

• certificate from a trauma center;
• medical imaging;
• forensic medical examination report;
• photographs;
• certificate of temporary incapacity for work;
• receipts for treatment expenses.

Evidentiary block concerning the motive

• screenshots;
• links to publications;
• audio recordings;
• video recordings;
• correspondence;
• witness testimony.

Contextual block

• previous threats;
• previous similar statements;
• messages sent to third parties;
• camera recordings;
• information indicating that the victim was selected precisely on the basis of belonging to the relevant group.

LXI. EVIDENCE THAT IT IS ADVISABLE FOR THE DEFENSE TO COLLECT

If the defense disputes the motive of hatred, it is necessary to collect:

1. evidence proving the existence of a personal conflict;
2. documents concerning previous disputes;
3. correspondence between the parties;
4. testimony of neutral witnesses;
5. video recordings;
6. information concerning the parties' conduct prior to the conflict;
7. evidence proving that the relevant statements were not made;
8. an alternative reason for the conflict.

LXII. TACTICAL ERROR OF THE DEFENSE

It is incorrect to limit oneself to the following formula:

“The defendant is not a nationalist/racist/religious extremist.”

This, by itself, proves little.

The subject matter of proof is:

not the personality of the accused in general, but the motive of the specific crime.

Therefore, the following formulation is considerably stronger:

“The case materials do not establish that the victim's belonging to a particular group was the reason for the accused's commission of the specific act.”

LXIII. TACTICAL ERROR OF THE PROSECUTION

The opposite error:

“He used an insult of a national nature, therefore the motive of hatred has been proven.”

No.

It is necessary to establish the causal relationship between the motive and the act.

This corresponds precisely to the Supreme Court's approach to a similar qualifying element. (Law and Law)

LXIV. PRACTICAL SCHEME FOR ANALYZING A CRIMINAL CASE

For an attorney, I would recommend structuring the analysis of the case in the following sequence:

Step 1

Establish the date on which the event occurred.

Step 2

Establish the date of registration in the Unified Register of Pre-Trial Investigations.

Step 3

Establish the initial qualification.

Step 4

Verify the correctness of the medical qualification.

Step 5

Verify the existence of intent.

Step 6

Examine the motive separately.

Step 7

Establish the source of each item of evidence relating to the motive.

Step 8

Verify the admissibility of the evidence.

Step 9

Check whether there are grounds for requalification.

Step 10

Check the possibility of applying Article 68 of the Criminal Code.

Step 11

Determine the civil claim.

Step 12

Determine the amount of moral and material harm.

Step 13

Check the limitation periods.

 Below is the English translation, preserving the structure, section numbering, legal terminology, wording, and links as they appear in the original.

LXV. BASIC REGULATORY LEGAL ACTS

1. Constitution of the Republic of Kazakhstan

Constitution of the Republic of Kazakhstan

Key articles:

• Article 13;
• Article 14;
• Article 17;
• Article 18;
• Article 19;
• Article 20.

2. Criminal Code of the Republic of Kazakhstan

Key provisions:

• Article 3 — basic concepts;
• Article 11 — categories of crimes;
• Article 14 — recidivism;
• Article 68 — reconciliation;
• Article 71 — limitation period;
• Article 99 — murder;
• Article 106 — grievous bodily harm;
• Article 107 — bodily harm of medium severity;
• Article 108-1 — intentional infliction of minor harm to health;
• Article 109-1 — battery;
• Article 110 — torture;
• Article 174 — incitement of social, national, tribal, racial, class or religious hatred.

LXVI. CRIMINAL PROCEDURE CODE OF THE REPUBLIC OF KAZAKHSTAN

Key provisions:

• Article 10 — legality;
• Article 32 — private, private-public and public prosecution;
• Articles 35–36 — termination of criminal prosecution;
• Article 64 — suspect;
• Article 71 — victim;
• Article 75 and subsequent articles — representatives;
• Articles 111–112 — evidence;
• Article 113 — circumstances subject to proof;
• Article 115 — testimony;
• Article 155 — other measures of procedural coercion;
• Article 166 — civil claims;
• Article 191 — inquiry;
• Article 306 — district court;
• Article 307 — juvenile court.

LXVII. LAW “ON MEDIATION”

Key articles:

• Article 20 — conditions for conducting mediation;
• Article 24 — mediation in criminal proceedings;
• Article 27 — agreement on settlement of a dispute (conflict).

Article 20 of the Law “On Mediation”Article 24 of the Law “On Mediation”Article 27 of the Law “On Mediation” (Law and Right)

LXVIII. REGULATORY RESOLUTIONS OF THE SUPREME COURT

1. On the qualification of certain criminal offenses against life and health of a person

This is the main document on the following issues:

• degree of severity of harm caused to health;
• causal relationship;
• battery;
• torture;
• qualifying circumstances;
• motive of hatred.

Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan on crimes against life and health (Adilet)

2. On the application of Article 68 of the Criminal Code

Regulatory Resolution No. 4 on reconciliation (Law and Right)

3. On consideration of a civil claim in criminal proceedings

Regulatory Resolution No. 1 of the Supreme Court of the Republic of Kazakhstan dated June 20, 2005 (Law and Right)

4. On compensation for moral harm

Regulatory Resolution No. 7 of the Supreme Court of the Republic of Kazakhstan dated November 27, 2015 (Law and Right)

LXIX. CONSTITUTIONAL COURT

The Regulatory Resolution of the Constitutional Court of the Republic of Kazakhstan dated October 6, 2023 No. 32-NP, devoted to issues of compensation for moral harm, deserves particular attention.

The Constitutional Court linked the institution of compensation for harm with victims’ right to access justice and mechanisms for compensation for the damage caused. (Law and Right)

For this category of cases, this is primarily important when a civil claim for compensation for moral harm is filed.

LXX. COURT PRACTICE: FINAL LEGAL CONCLUSIONS

The following practical positions may be derived from the current regulatory resolutions of the Supreme Court.

Position 1

The fact of minor harm must be established by medical evidence.

Position 2

Intent to cause harm is not equivalent to a motive of hatred.

Position 3

The victim’s nationality, race or religion, by themselves, do not prove the motive of the crime.

Position 4

It is necessary to establish a causal relationship between the victim’s membership in a particular group and the attack.

Position 5

Insults of a national/religious nature made during a domestic conflict should not automatically be equated with a motive of hatred.

Position 6

If there is insufficient evidence of a qualifying element, the act may be classified under a less serious offense.

Position 7

Reconciliation-based exemption from criminal liability under Part 2 of Article 108-1 of the Criminal Code is generally possible, since this is a minor offense; however, the restrictions provided for by Article 68 of the Criminal Code apply. (Law and Right)

Position 8

A civil claim may be filed before the end of the judicial investigation. (Law and Right)

Position 9

No state duty is payable when a civil claim is filed in a criminal case. (Adilet)

Position 10

Moral harm may be recovered directly within the criminal proceedings. (LawPravo Mail)

LXXI. A PARTICULARLY IMPORTANT PROCEDURAL FEATURE OF 2026

When working with cases in this category, it should be taken into account that the Criminal Procedure Code of the Republic of Kazakhstan continues to be reformed.

In particular, the official legislation database already contains amendments that entered into force on July 1, 2026, as well as certain amendments scheduled to take effect on January 1, 2027. (Adilet)

Therefore, when preparing a specific complaint, petition or appeal, it is necessary to verify the version of the provision as of the date of the procedural action, rather than simply using the version of the Criminal Code/Criminal Procedure Code found on the Internet.

This is particularly important with regard to:

• jurisdiction;
• the form of pre-trial investigation;
• the powers of the court;
• appeal;
• cassation;
• procedural agreements.

LXXII. FINAL LEGAL MODEL

As of October 3, 2026, the structure is as follows:

LXXIII. PRACTICAL CONCLUSION FOR THE LAWYER

If a lawyer is dealing with a specific case under Subparagraph 6) of Part 2 of Article 108-1 of the Criminal Code of the Republic of Kazakhstan, it is advisable to divide the defense into three separate areas, rather than one:

Area No. 1 — medical

It is necessary to prove that:

• the bodily injuries do not correspond to the classification charged;
• the expert opinion is incomplete;
• there is no causal relationship;
• an additional or repeat forensic medical examination is required.

Area No. 2 — factual

If the fact that a blow was inflicted is objectively confirmed, it should not be automatically denied; instead, it is necessary to establish:

• who started the conflict;
• what caused it;
• what happened immediately before the blow;
• what words were actually spoken;
• who uttered them.

Area No. 3 — subjective element

This is the key block:

to prove the absence of a motive of social, national, racial or religious hatred.

That is, not:

“the accused is not a racist,”

but rather to substantiate the position that:

“the body of admissible and reliable evidence does not establish that the victim’s membership in a particular social, national, racial or religious group was the reason for intentionally causing harm to the victim.”

Posing the issue in precisely this manner corresponds to the structure of the elements of the offense and to the position of the Supreme Court regarding similar qualifying elements. (Law and Right)

Key links on ZakonPravo.kz for practical use

• Article 108-1 of the Criminal Code of the Republic of Kazakhstan
• Article 11 of the Criminal Code of the Republic of Kazakhstan
• Article 68 of the Criminal Code of the Republic of Kazakhstan
• Article 71 of the Criminal Code of the Republic of Kazakhstan
• Article 32 of the Criminal Procedure Code of the Republic of Kazakhstan
• Article 71 of the Criminal Procedure Code of the Republic of Kazakhstan
• Article 112 of the Criminal Procedure Code of the Republic of Kazakhstan
• Article 115 of the Criminal Procedure Code of the Republic of Kazakhstan
• Article 155 of the Criminal Procedure Code of the Republic of Kazakhstan
• Article 166 of the Criminal Procedure Code of the Republic of Kazakhstan
• Article 191 of the Criminal Procedure Code of the Republic of Kazakhstan
• Article 306 of the Criminal Procedure Code of the Republic of Kazakhstan
• Law “On Mediation”
• Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan on crimes against life and health
• Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan on reconciliation under Article 68 of the Criminal Code
• Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan on civil claims in criminal proceedings
• Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan on compensation for moral harm

If you wish, I can also edit this text in a formal legal English style suitable for submission to a foreign lawyer, court, international organization, or legal opinion, while preserving the substance and legal references.

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