Release from Criminal Liability and Punishment on the Basis of an Act of Amnesty or Pardon
Legal Commentary on Article 78 of the Criminal Code of the Republic of Kazakhstan(Release from Criminal Liability and Punishment on the Basis of an Act of Amnesty or Pardon)
I. General Characteristics of the Article
Article 78 of the Criminal Code of the Republic of Kazakhstan regulates two independent grounds for release from criminal liability and/or punishment:
- An act of amnesty (issued by the Parliament of the Republic of Kazakhstan);
- An act of pardon (issued by the President of the Republic of Kazakhstan).
Both legal institutions represent manifestations of state humanism and mercy, are aimed at individual or mass mitigation of criminal repression, and are implemented within the framework of criminal law policy.
II. Act of Amnesty: Concept, Forms, and Legal Nature
1. Concept and Adopting Authority
An act of amnesty is a normative legal act adopted by the Parliament of the Republic of Kazakhstan, applied to an indeterminate group of persons and having general binding force.
2. Forms of Application of Amnesty
According to Part 2 of Article 78 of the Criminal Code of the Republic of Kazakhstan, an act of amnesty may provide for:
· release from criminal liability;· release from punishment;· reduction of the term of punishment;· substitution of punishment with a milder type;· release from an additional punishment;· expungement of a criminal record.
3. Exclusions from Amnesty
An act of amnesty does not apply to persons convicted of:
· crimes against the sexual integrity of minors (except for special cases);· terrorist and extremist crimes;· torture;· recidivism and dangerous recidivism of crimes.
These provisions are consistent with international human rights protection standards (for example, the Convention on the Rights of the Child and the UN Convention against Torture).
4. Practical Examples
· Resolution of the Supreme Court of the Republic of Kazakhstan No. 7 of 2016: notes that the consent of the convicted person is not required for the application of amnesty.· Amnesty in honor of the 30th Anniversary of the Independence of the Republic of Kazakhstan (2021): covered a significant number of convicted persons but excluded serious corruption and violent crimes.
III. Act of Pardon: An Individual Approach
1. Authority and Form
An act of pardon is an individual act of the President of the Republic of Kazakhstan applied to a specific person. It may be issued in respect of:
· a person whose conviction has entered into legal force;· a person serving a sentence (including under a judgment of a foreign court);· a person who has already served a sentence (for the purpose of expunging a criminal record).
2. Forms of Application
· release from further serving of the sentence;· reduction or substitution of punishment with a milder one;· release from an additional punishment;· expungement of a criminal record.
3. Legal Nature
A pardon is an act of individual mercy, which does not imply automatic application and necessarily involves consideration of a petition.
4. Practice
· Decree of the President of the Republic of Kazakhstan of 2020: persons with disabilities, elderly persons, and participants in the liquidation of the consequences of the Chernobyl Nuclear Power Plant disaster were pardoned.
IV. Comparative Legal and International Aspects
1. Comparison with International Practice
· In accordance with Article 6(4) of the International Covenant on Civil and Political Rights, everyone sentenced to death has the right to seek pardon or commutation of the sentence.· In the practice of the European Court of Human Rights, amnesty and pardon are recognized as legitimate means of mitigating criminal liability, provided that the principles of equality and legality are observed (case of Kafkaris v. Cyprus).
2. UN Positions
· The Human Rights Committee (within the framework of the ICCPR) emphasizes that acts of amnesty should not extend to international crimes and serious human rights violations (including torture and sexual violence against children).
V. Related Provisions of the Criminal Code and Other Codes
· Article 71 of the Criminal Code of the Republic of Kazakhstan — statute of limitations for criminal liability;· Article 77 of the Criminal Code of the Republic of Kazakhstan — release from serving a sentence due to the expiration of the statute of limitations for the conviction;· Article 13 of the Penal Enforcement Code of the Republic of Kazakhstan — procedure for executing acts of amnesty and pardon;· Law of the Republic of Kazakhstan “On Amnesty” (adopted separately for each case) — determines the procedure for applying amnesty;· Constitution of the Republic of Kazakhstan, Article 40 — the President has the power to grant pardons.
VI. Conclusion
Article 78 of the Criminal Code of the Republic of Kazakhstan is an important element of the system of criminal law regulation, ensuring humanism and an individual approach in the implementation of criminal liability. It should be applied with due regard to justice, the interests of victims, and the principles of the rule of law. Issues of amnesty and pardon require a comprehensive approach based on the analysis of all circumstances of the case and compliance with both national and international human rights standards.
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