On judicial practice on the application of Article 68 of the Criminal Code of the Republic of Kazakhstan
Normative Resolution of the Supreme Court of the Republic of Kazakhstan dated June 21, 2001 No. 4.
The footnote. Name as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 11.07.2003 No. 6; dated 31.03.2017 No. 3 (effective from the date of the first official publication).
The footnote. Throughout the text, the numbers "67" are replaced by the numbers "68" in accordance with the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 3 (effective from the date of the first official publication).
The Supreme Court of the Republic of Kazakhstan, having discussed the results of the generalization of judicial practice of exemption from criminal liability on the basis of Article 68 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code) in connection with the reconciliation of a person who committed a criminal offense with the victim, the applicant, in order for the uniform application by the courts of the said provision of the law decides to provide the following clarifications: <*>
The footnote. The preamble as amended by the normative resolutions of the Supreme Court of the Republic of Kazakhstan dated 11.07.2003 No. 6; dated 31.03.2017 No. 3 (effective from the date of the first official publication).
The correct application of the institution of reconciliation of the parties contributes to increasing the role and activity of the victim by the applicant in the criminal process, the full and rapid restoration of their violated rights and freedoms, while at the same time aimed at showing humanity to persons who have committed criminal offenses, who subsequently showed positive behavior, expressed in reconciliation with the victim, the applicant and amends for harm.
The body conducting the criminal proceedings is obliged to explain to the person who committed the criminal offense, the victim and the applicant the right, grounds and procedure for reconciliation in accordance with article 68 of the Criminal Code.
The pre-trial investigation body explains to the victim and the suspect their right to reconciliation on the basis of Article 68 of the Criminal Code in the presence of the suspect's lawyer, about which a separate protocol is drawn up.
Upon receipt of a party's request to involve a mediator in the case to reconcile the parties, the pre-trial investigation body has no right to refuse to satisfy it.
Reaching an agreement in the reconciliation process, including through mediation, on compensation for future harm cannot be considered as making amends for the harm caused to the victim, which is the basis for the application of Article 68 of the Criminal Code, which the pre-trial investigation body must explain to the suspect and the victim.
The footnote. Item 1 as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 07/11/2003 No. 6; dated 04/21/2011 No. 1 (effective from the date of official publication); dated 03/31/2017 No. 3 (effective from the date of the first official publication); dated 12/11/2020 No. 6 (effective from the date of the first official publication). 2. Excluded by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/21/2011 No. 1 (effective from the date of its official publication).
In accordance with the first part of Article 68 of the Criminal Code, a person who has committed a criminal offense is subject to release from criminal liability if he has made amends for the damage caused, and he has reconciled with the victim, the applicant, or reconciliation took place through mediation.
The footnote. Paragraph 3 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 3 (effective from the date of the first official publication).
3-1. The provisions of the first part of Article 68 of the Criminal Code apply to persons who have committed a crime of minor or moderate gravity, if there are a combination of the following grounds:
the criminally punishable act committed by him belongs to the category of crimes of minor or moderate gravity, not related to causing death.;
reconciliation of the person who committed the crime with the victim, the applicant, as well as mediation took place.;
the person who committed the crime made amends for the harm caused by the crime to the victim, the applicant.
In the absence of at least one of the listed grounds, the application of the first part of Article 68 of the Criminal Code is unacceptable.
It does not matter whether the person has committed a criminal offense or a minor or moderate crime for the first time, or whether his actions include repeated, cumulative or recurrent crimes, 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 control or postponement of execution of the sentence or the remaining unserved part of the sentence. on parole.
When applying the provisions of the first part of Article 68 of the Criminal Code, it should be borne in mind that the grounds for termination of the case specified in the article do not apply to cases of criminal offenses provided for in the second and fourth parts of Article 32, paragraphs 5, 7 of the first part of Article 35 of the Criminal Procedure Code of the Republic of Kazakhstan (hereinafter - CPC).
The footnote. Paragraph 3-1 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 3 (effective from the date of the first official publication).
3-2. According to the second part of Article 68 of the Criminal Code, a decision on the termination of a case on the commission of a serious crime not related to causing death or serious harm to human health is possible if this crime was committed for the first time by persons, an exhaustive list of which is specified in the second part of Article 68 of the Criminal Code.
The provisions of the second part of Article 68 of the Criminal Code apply to persons who have committed a serious crime unrelated to causing death or serious harm to human health, if there are a combination of the following grounds:
a serious crime not related to causing death or serious harm to human health was committed for the first time by persons under the age of majority, pregnant women, women with young children, men raising young children alone, women aged fifty-eight and over, men aged sixty-three and over;
the act committed by the guilty person belongs to the category of serious crimes not related to causing death or serious harm to human health.;
reconciliation of the person who committed the crime with the victim, the applicant, took place, including through mediation;
the person who committed the crime made amends for the harm caused by the crime to the victim, the applicant.
In the absence of at least one of the listed grounds, the application of the second part of Article 68 of the Criminal Code is unacceptable.
If a minor is released from criminal liability for committing a serious crime that is not related to causing death or serious harm to human health, compulsory educational measures are applied to him.
The footnote. Paragraph 3-2 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 3 (effective from the date of the first official publication).
When deciding on the application of the second part of Article 68 of the Criminal Code to a person who has committed a serious crime 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 for a previously committed crime 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 79 of the Criminal Code).
A person who has committed two or more crimes (with repeated or actual totality), as a whole, cannot be recognized as a person who has committed a crime for the first time. At the same time, according to the first episode of the charge, the person should be considered to have committed a crime for the first time.
The footnote. Paragraph 4 as amended by the normative resolution of the Supreme Court of the Republic of Kazakhstan dated 11.07.2003 No. 6; as amended by the normative resolutions of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 3 (effective from the date of the first official publication); dated 11.12.2020 No. 6 (effective from the date of the first official publication).
The harm to be compensated by the person who committed the criminal offense should include any harm caused to the victim, the applicant by a criminal offense: moral, physical and property, while taking into account not only direct but also indirect losses related to the criminal offense, 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 the restoration of damaged property, the return of stolen or equivalent property, the payment of monetary compensation, the purchase of medicines, sanatorium vouchers, an apology to the victim, the applicant and other forms not prohibited by law. <*>
The footnote. Paragraph 5 as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 11.07.2003 No. 6; dated 31.03.2017 No. 3 (effective from the date of the first official publication).
It should be carefully clarified exactly what harm was caused to the victim, the applicant, and whether it was fully compensated by the person who committed the criminal offense. Compensation for the harm caused should be sufficient from the point of view of the victim, the applicant, and not the person who committed the criminal offense.
The criminal prosecution authorities and the court have no right to change the claims of the victim or the applicant about the amount of damage to be compensated.
The existence of a dispute between the parties about the amount of compensation for harm indicates that reconciliation has not taken place, and in this situation, the person who committed a criminal offense cannot be released from criminal liability on the basis of article 68 of the Criminal Code.
The reparation of harm must be real, preceded by reconciliation of the parties and the decision to release the person who committed the criminal offense from criminal liability. The voluntary refusal of the victim, the applicant, to make amends to the person who committed the criminal offense cannot be regarded as a failure to fulfill his duty to make amends for this harm and in itself cannot be an obstacle to reconciliation of the parties.
For the application of Article 68 of the Criminal Code, it does not matter by whom the harm was repaired: by the person who committed the criminal offense, or at his request by relatives, other persons or organizations.
The footnote. Paragraph 6 as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 11.07.2003 No. 6; dated 31.03.2017 No. 3 (effective from the date of the first official publication).
Reconciliation is expressed in the request of the victim, the applicant, to terminate the criminal case initiated against the person who committed the criminal offense. The will of the victim or the applicant is made out in a written statement or is reflected in the protocols of his interrogation at the stage of the preliminary investigation or in the minutes of the court session.
At the request of the victim or applicant for mitigation of punishment to the accused (defendant) in connection with the absence of material claims against him, the body conducting the criminal process is obliged to find out whether reconciliation took place between the person who committed the criminal offense and the victim or applicant, and whether there are other grounds necessary for the application of Article 68 of the Criminal Code.
The footnote. Paragraph 7 as amended by the regulatory resolutions of the Supreme Court of the Republic of Kazakhstan dated 11.07.2003 No. 6; dated 31.03.2017 No. 3 (effective from the date of the first official publication).
The fact of voluntary and free expression of the victim's will by the applicant when exercising his right to reconciliation is included in the subject of evidence in the case. A victim's or applicant's statement of reconciliation, submitted under duress by anyone, cannot serve as a basis for the release of a person who has committed a criminal offense from criminal liability.
The participation of other persons (relatives, friends, colleagues, representatives of state organizations or public associations, etc.) with the consent of the parties in the reconciliation procedure does not in itself exclude the voluntary nature and freedom of expression of the victim's or applicant's right to reconciliation.
The criminal prosecution authorities and the court do not have the right to participate for any purpose in the reconciliation process itself, they only have to explain to the victim, the applicant and the person who committed the criminal offense the law, grounds and procedure for reconciliation.
The footnote. Paragraph 8 as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 11.07.2003 No. 6; dated 31.03.2017 No. 3 (effective from the date of the first official publication).
Criminal prosecution authorities and courts must strictly comply with the requirements of the law when granting victims the status of victims, and exclude from practice cases of both unjustified refusal to recognize victims and illegal granting of victims' rights to persons who are not actually victims.
According to article 71 of the CPC, the victim can be either an individual or a legal entity. The criminal prosecution authorities and the court must verify the authority of a representative of a legal entity participating in the case as a representative of the victim to reconcile with the person who committed the crime. Such powers should be reflected in the power of attorney to participate in the case.
The footnote. Paragraph 9, as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 11.07.2003 No. 6; dated 21.04.2011 No. 1 (effective from the date of official publication); dated 31.03.2017 No. 3 (effective from the date of the first official publication).
9-1. The release of a person from criminal liability in connection with reconciliation on the basis of parts one and two of Article 68 of the Criminal Code is allowed only if there is a victim (individual or legal entity), the applicant.
On the basis of part three of Article 68 of the Criminal Code, a person specified in part one or two of Article 68 of the Criminal Code may be released from criminal liability even in the absence of the victim, the applicant, provided that he has sincerely repented and made amends for the harm caused by the criminal offense to the legally protected interests of society or the state.
In cases of corruption crimes, the list of which is given in paragraph 29 of Article 3 of the Criminal Code, the application of Article 68 of the Criminal Code is not permitted.
The footnote. The Resolution was supplemented by paragraph 9-1 in accordance with the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/21/2011 No. 1 (effective from the date of official publication); as amended by regulatory resolutions of the Supreme Court of the Republic of Kazakhstan dated 03/31/2017 No. 3 (effective from the date of the first official publication); dated 12/11/2020 No. 6 (effective from the date of the first official publication).
9-2. In accordance with the first part of Article 36 of the CPC, the following persons have the right to terminate a criminal case and release a person from criminal liability on the basis of the second and third parts of Article 68 of the Criminal Code: at the pre-trial stage, the prosecutor and, with his consent, the investigator or the body of inquiry; at the trial stage, the court (judge) at the request of the party or on his own initiative.
The footnote. The Resolution was supplemented by paragraph 9-2 in accordance with the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/21/2011 No. 1 (effective from the date of official publication); as amended by regulatory resolutions of the Supreme Court of the Republic of Kazakhstan dated 03/31/2017 No. 3 (effective from the date of the first official publication); dated 12/22/2022 No. 10 (effective from the date of the first official publication).
Reconciliation with the person who committed the crime, a minor victim (aged from fourteen to eighteen years) or recognized as having limited legal capacity is possible only with the consent of the victim's legal representative.
The circle of persons who can be legal representatives is defined in paragraph 13 of Article 7 of the CPC and is not subject to broad interpretation. <*>
The footnote. Paragraph 10 as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 11.07.2003 No. 6; dated 31.03.2017 No. 3 (effective from the date of the first official publication).
10-1. The provisions of Article 68 of the Criminal Code (Exemption from criminal liability in connection with reconciliation) do not apply in the cases specified in the fourth part of Article 68 of the Criminal Code.
By virtue of the requirements of part three of Article 6 of the Criminal Code (retroactive effect of the criminal law), the provisions of paragraph 8) of part four of Article 68 of the Criminal Code apply only to persons previously released from criminal liability in connection with reconciliation of the parties for a crime committed after January 10, 2020.
The limitation period for bringing to criminal responsibility for a crime for which a person has been released from criminal liability in connection with reconciliation of the parties is calculated according to the rules of the first part of Article 71 of the Criminal Code from the moment of the commission of this crime, with the exception of cases provided for in the fourth part of Article 71 of the Criminal Code.
The footnote. The regulatory resolution was supplemented by paragraph 10-1 in accordance with the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 03/31/2017 No. 3 (effective from the date of the first official publication); as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 12/11/2020 No. 6 (effective from the date of the first official publication); as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 12/22/2022 No. 10 (effective from the date of the first official publication). 11. Excluded by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 3 (effective from the date of the first official publication).
The victim's close relatives are his parents, children, adoptive parents, adopted children, full- and half-siblings, grandparents, and grandchildren. This list of persons contained in paragraph 11 of Article 7 of the CPC is exhaustive and cannot be interpreted broadly.
The footnote. Paragraph 12, as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 07/11/2003 No. 6; dated 03/31/2017 No. 3 (effective from the date of the first official publication); dated 12/22/2022 No. 10 (effective from the date of the first official publication).
In accordance with the law, the norm provided for in the first part of Article 68 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 the release of a person from criminal liability.
Failure by the pre-trial investigation body to explain to the suspect and (or) the victim their rights provided for in paragraph 15) of part nine of Article 64 and paragraph 8) of part six of Article 71 of the Criminal Procedure Code, as well as their failure to apply the rules of part one of Article 68 of the Criminal Code with the consent of the parties to reconciliation, is a significant violation of the law. When these violations are established, the court is obliged to inform the prosecutor about this in a private decision in order to take appropriate measures.
The footnote. Paragraph 13 as amended by the normative resolution of the Supreme Court of the Republic of Kazakhstan dated 07/11/2003 No. 6; as amended by the normative resolutions of the Supreme Court of the Republic of Kazakhstan dated 03/31/2017 No. 3 (effective from the date of the first official publication); dated 12/11/2020 No. 6 (effective from the date of the first official publication).
13-1. The application of the provisions of the law provided for in the second and third parts of Article 68 of the Criminal Code is optional.
When applying these provisions of the law, it is necessary to take into account, along with the position of the victims and applicants, the nature and degree of public danger of the act, the data characterizing the person who committed the criminal offense, the consequences of the criminal offense and other significant circumstances of the case.
The footnote. The Resolution was supplemented by paragraph 13-1 in accordance with the normative resolution of the Supreme Court of the Republic of Kazakhstan dated 07/11/2003 No. 6; as amended by the normative resolutions of the Supreme Court of the Republic of Kazakhstan dated 04/21/2011 No. 1 (effective from the date of official publication); dated 03/31/2017 No. 3 (effective from the date of the first official publication); dated 12/11/2020 No. 6 (effective from the date of the first official publication).
13-2. The application of Article 68 of the Criminal Code with the termination of the proceedings in part is possible even if there is a combination and repetition of crimes in relation to those crimes and episodes for which reconciliation has been achieved. At the same time, the proceedings on crimes for which reconciliation has not taken place or is prohibited by law continue in accordance with the CPC.
In cases of a crime committed in complicity, the application of article 68 of the Criminal Code is possible only for those persons who have reconciled with the victim, the applicant. The proceedings against the accomplices of the crime who have not reached reconciliation with the victim, the applicant, are continuing in accordance with the CPC.
In cases of repeated crimes considered in one proceeding, the person against whom the provisions of the first part of Article 68 of the Criminal Code were applied in the previous episode of the charge is not one of the persons listed in paragraph 8) of the fourth part of Article 68 of the Criminal Code, since at the time of the commission of the subsequent crime this person was not a person previously released from criminal liability in connection with reconciliation of the parties for a previously committed crime.
The footnote. The Resolution was supplemented by paragraph 13-2 in accordance with the normative resolution of the Supreme Court of the Republic of Kazakhstan dated 07/11/2003 No. 6; as amended by the normative resolutions of the Supreme Court of the Republic of Kazakhstan dated 04/21/2011 No. 1 (effective from the date of official publication); dated 03/31/2017 No. 3 (effective from the date of the first official publication); dated 12/11/2020 No. 6 (effective from the date of the first official publication).
The law allows the application of Article 68 of the Criminal Code in cases of crimes that simultaneously encroach on two or more objects (for example, hooliganism, military crimes, etc.). In this category of cases, the body conducting the criminal process is obliged, in accordance with the law, to recognize as victims all persons (including legal entities) who are directly involved in the crime. moral, physical, or property damage has been caused.
If reconciliation has not taken place with at least one of the victims, the person who committed the crime cannot be released from criminal liability on the basis of Article 68 of the Criminal Code.
The footnote. Paragraph 14 as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 11.07.2003 No. 6; dated 31.03.2017 No. 3 (effective from the date of the first official publication).
In accordance with the first part of Article 36 of the CPC, if there are grounds for applying Article 68 in the cases provided for in the first part of Article 65, articles 66, 67, parts two, three of Article 68, parts one, three of Article 83, as well as the notes to the articles 441, 442, 444, 445, 446, 447, 448, 453 of the Criminal Code, the court has the right to terminate the criminal case or to issue a guilty verdict with the release of the person who committed the crime from criminal liability.
A decision to terminate a criminal case may be made at the preliminary hearing stage and at any stage of the main trial.
The verdict can be pronounced only after the conclusion of the main trial.
The verdict is also issued in cases where the court recognizes that the actions of a person who has been transferred to the court on charges of committing a grave or especially grave crime actually contain a composition for which article 68 of the Criminal Code can be applied.
The footnote. Paragraph 15, as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 07/11/2003 No. 6; dated 03/31/2017 No. 3 (effective from the date of the first official publication); dated 12/22/2022 No. 10 (effective from the date of the first official publication).
The termination of a criminal case on the basis of Article 68 of the Criminal Code is considered by the law to be an exemption from criminal liability on non-rehabilitating grounds. Before the case is terminated, the person who committed the crime and the victim must be informed by the applicant of the legal consequences of the grounds for termination of the case and the right to object to termination on this basis. The victim, the applicant, should also clarify that he has no right, after the termination of the case under article 68 of the Criminal Code, to raise the issue of resuming criminal prosecution against the same person on the same charge.
In accordance with the fifth part of Article 36 of the CPC, termination of the case is not allowed if the suspect, the accused, the defendant or the victim, the applicant object to this. In this case, the proceedings will continue as usual. <*>
The footnote. Paragraph 16, as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 07/11/2003 No. 6; dated 03/31/2017 No. 3 (effective from the date of the first official publication); dated 12/11/2020 No. 6 (effective from the date of the first official publication).
A decision to terminate a criminal case issued by a criminal prosecution body or a court, as well as a verdict, must meet the general requirements imposed by law on such procedural documents (respectively, parts two, three and four of Article 288, articles 327, 344, 395, 396, 397, 398, 401 CPC). In addition, it should also provide a legal assessment of the act, indicating the category of the crime by severity, noting the voluntariness of reconciliation, indicating what exactly was the reparation for the damage caused, and in cases where the second part of Article 68 of the Criminal Code applies to a person who has committed a serious crime not related to causing death or serious harm to human health. In addition, it has been confirmed that the person committed this crime for the first time. <*>
The footnote. Paragraph 17 as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 11.07.2003 No. 6; dated 31.03.2017 No. 3 (effective from the date of the first official publication).
An application for reconciliation is possible only at the stage of the pre-trial investigation and in the court of first instance and appeal. The criminal prosecution body and the court are obliged, if there is a legally prescribed set of grounds for releasing a person from criminal liability in connection with reconciliation with the victim, the applicant, to discuss the application of article 68 of the Criminal Code and to motivate the decision.
The footnote. Item 18 as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 07/11/2003 No. 6; dated 04/21/2011 No. 1 (effective from the date of official publication); dated 03/31/2017 No. 3 (effective from the date of the first official publication); dated 12/11/2020 No. 6 (effective from the date of the first official publication).
In the court of cassation, exemption from criminal liability on the basis of Article 68 of the Criminal Code is permissible only if circumstances giving grounds for the application of Article 68 of the Criminal Code were established in the court of first instance or the court of appeal, but the court unlawfully or unreasonably failed to apply this law.
The footnote. Paragraph 19 as amended by the normative resolution of the Supreme Court of the Republic of Kazakhstan dated 04/21/2011 No. 1 (effective from the date of official publication); as amended by the normative resolution of the Supreme Court of the Republic of Kazakhstan dated 03/31/2017 No. 3 (effective from the date of the first official publication).
According to article 4 of the Constitution of the Republic of Kazakhstan, this regulatory resolution is included in the current law, is generally binding and enters into force from the date of its official publication.
The footnote. The regulatory resolution was supplemented by paragraph 20 in accordance with the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 3 (effective from the date of the first official publication).
Chairman of the Supreme Court
Republic of Kazakhstan
Secretary of the Plenum,
Judge of the Supreme Court
Republic of Kazakhstan
© 2012. RSE na PHB "Institute of Legislation and Legal Information of the Republic of Kazakhstan" of the Ministry of Justice of the Republic of Kazakhstan
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