Repeated Infliction of Beatings

1. Regulatory Framework for Legal Classification

Article 109-1 of the Criminal Code of the Republic of Kazakhstan — “Beatings” on Zakonpravo.kz

Part 1 of Article 109-1 of the Criminal Code of the Republic of Kazakhstan establishes liability for:

inflicting beatings or committing other violent acts that cause physical pain but do not result in the infliction of minor bodily harm.

Part 2 provides for an aggravated offence, including where the same acts are committed repeatedly — subparagraph 7) of part 2 of Article 109-1 of the Criminal Code of the Republic of Kazakhstan. The sanction under part 2 provides for a fine ranging from 100 to 200 monthly calculation indices (MCI), corrective labour in the same amount, community service ranging from 100 to 200 hours, or arrest for a period of 30 to 50 days. (Adilet.kz)

For the purposes of legal classification, the following elements must be established simultaneously:

1. the fact of beatings or other violent acts;
2. the infliction of physical pain;
3. the absence of minor bodily harm;
4. the intentional nature of the actions;
5. the existence of two or more independent criminal offences falling within the concept of repetition;
6. the absence of circumstances precluding recognition of the act as repeated;
7. the absence of elements of another, more appropriate offence, primarily under Articles 108-1 or 110 of the Criminal Code of the Republic of Kazakhstan.

The last issue is particularly important: the mere existence of several episodes of physical violence does not automatically mean that part 2 of Article 109-1 of the Criminal Code applies.

2. What Exactly Does “Repeatedly” Mean?

The key provisions are Article 12 of the Criminal Code of the Republic of Kazakhstan and Regulatory Resolution No. 11 of the Supreme Court of the Republic of Kazakhstan dated 25 December 2006, “On the Qualification of Repetition and Aggregation of Criminal Offences.”

Regulatory Resolution No. 11 of the Supreme Court of the Republic of Kazakhstan on Repetition and Aggregation of Criminal Offences

Article 12 of the Criminal Code provides that repetition means the commission of two or more acts stipulated by the same article or the same part of an article of the Special Part of the Criminal Code. At the same time, an act shall not be recognised as repeated if the person has already been convicted for the previously committed criminal offence or released from criminal liability on the grounds provided for by law. Furthermore, a crime and a criminal misdemeanour do not constitute repetition in relation to each other. (Adilet)

The Supreme Court further clarifies that repetition presupposes several identical criminal offences, rather than merely similar or homogeneous ones. (Zakon i Pravo)

Therefore:

Two independent episodes of beatings may constitute an offence under part 2 of Article 109-1 of the Criminal Code.

However:

Two, five or ten blows delivered during a single conflict do not, in themselves, constitute the element of “repetition”.

This is a fundamental distinction.

3. Repetition and a Continuing Criminal Offence

This is one of the most important issues for the defence.

The Supreme Court requires a distinction to be made between:

• repetition;
• actual aggregation of offences;
• a continuing criminal offence.

If several actions are united by:

• a single intent;
• a single purpose;
• a common direction;
• a similar method;
• a single criminal intention,

they may be regarded as one continuing criminal offence, rather than as repetition. (Zakon i Pravo)

Example

During a single conflict, a person:

• pushed the victim;
• struck the victim five times;
• grabbed the victim by the clothing;
• twisted the victim's arm;
• struck the victim once again.

If all of this takes place within a single episode and is covered by a single intent, there are no grounds for mechanically treating each action as a separate independent criminal offence.

A different situation arises where:

1 January — the person inflicts beatings on the victim.

20 January — following a new conflict, the person again inflicts beatings.

10 February — the person commits another independent assault.

If the independence of the episodes is proven, the issue arises as to whether the conduct should be classified under part 2 of Article 109-1 of the Criminal Code as a repeated offence.

4. Repetition Is Not Simply “Regular Violence”

Particular attention should be paid to Article 110 of the Criminal Code of the Republic of Kazakhstan — torture.

The Supreme Court's Regulatory Resolution No. 1 on the qualification of criminal offences against life and health expressly states that torture may take the form of continuing and/or repeated acts, including:

• beatings;
• infliction of minor bodily harm;
• biting;
• pulling out hair;
• pricking;
• deprivation of food;
• deprivation of water;
• deprivation of heat;
• other violent acts.

In this regard, beatings and the infliction of minor bodily harm may be covered by the offence of torture and do not require additional classification under Articles 108-1 or 109-1 of the Criminal Code. (Adilet)

Therefore, repeated violence against the same victim must be examined not only for the presence of the element of “repetition”, but also for the elements of the offence under Article 110 of the Criminal Code.

5. Distinction Between Part 2 of Article 109-1 and Article 110 of the Criminal Code

Article 109-1

The basic elements are:

physical pain + absence of minor bodily harm.

Under part 2, an additional qualifying element is present, such as repetition.

Article 110

Additional elements are required:

• physical or mental suffering;
• particular cruelty, humiliation or another relevant characteristic;
• the purpose of inflicting torment on the victim.

The Supreme Court expressly emphasises the importance of the purpose of inflicting torment for the offence of torture. (Adilet)

Practical Conclusion

If the prosecution states:

“He struck the female victim several times”,

this does not automatically constitute an offence under Article 110.

However, if the following circumstances are established:

systematic violence, prolonged infliction of suffering, humiliation, particular cruelty, and the deliberate infliction of torment,

the issue of applying Article 110 must be examined.

6. Distinction from Intentional Infliction of Minor Bodily Harm — Article 108-1 of the Criminal Code

Article 109-1 applies only where no minor bodily harm has been inflicted.

If medical and forensic medical evidence establishes that the beatings resulted in:

• a short-term health disorder;
• or a minor permanent loss of general working capacity,

the act may fall under Article 108-1 of the Criminal Code rather than Article 109-1. This is expressly clarified by the Supreme Court. (Adilet)

This is particularly important in cases involving repeated episodes.

For example:

• first episode — physical pain without bodily harm;
• second episode — minor bodily harm.

The issue must be resolved not by mechanically combining the episodes under part 2 of Article 109-1, but by establishing the legal classification of each individual episode.

7. Historical Issue: Why 16 June 2024 Is Important

Article 109-1 was introduced by Law of the Republic of Kazakhstan No. 72-VIII dated 15 April 2024.

The relevant provisions of the Law entered into force on 16 June 2024. The Supreme Court specifically stated that a new criminal law that worsens a person's legal position cannot be applied to acts committed before its entry into force. (Adilet)

Therefore, in a case where:

• the first episode occurred in May 2024;
• the second occurred in July 2024,

both episodes cannot automatically be classified under the current part 2 of Article 109-1 without analysing the application of the criminal law in time.

In this situation, the rules governing the temporal application of criminal law and the principle prohibiting the retroactive application of a law that worsens a person's legal position apply.

8. Category of Criminal Offence

The sanction under part 2 of Article 109-1 provides for:

• a fine;
• corrective labour;
• community service;
• arrest for up to 50 days.

This falls within the category of a criminal misdemeanour, since the sanction corresponds to the system of penalties applicable to criminal misdemeanours.

This has significant procedural consequences:

1. a special procedure for pre-trial investigation applies;
2. the limitation period is one year;
3. a special mechanism for termination of proceedings in connection with reconciliation applies;
4. a protocol-based form of pre-trial investigation is предусмотрена.

9. Jurisdiction and Competence of the Authorities

The case falls within criminal jurisdiction.

This is not a civil-law dispute concerning beatings.

The victim should not file an ordinary civil claim seeking:

“a declaration that a person is guilty of inflicting beatings”.

The determination of guilt is carried out within the framework of criminal proceedings.

Civil claims for:

• compensation for moral damage;
• compensation for property damage;
• medical treatment expenses;
• other expenses directly caused by the offence,

may be brought within the criminal proceedings as a civil claim.

Article 167 of the Criminal Procedure Code expressly provides for the possibility of filing a civil claim in criminal proceedings. (Zakon i Pravo)

10. Venue and Court Jurisdiction

A case under part 2 of Article 109-1 falls within the jurisdiction of a court of first instance in accordance with the rules of territorial jurisdiction.

In practice, this means that the case is referred to the relevant district or equivalent court, unless there are special grounds for assigning jurisdiction to another court.

It is important to distinguish between:

Investigative jurisdiction

Which authority conducts the pre-trial investigation.

Court jurisdiction

Which court considers the case.

Jurisdiction by subject matter

In criminal cases, it is more accurate to refer to criminal jurisdiction and court jurisdiction, whereas the term “jurisdiction by subject matter” is primarily used to distinguish between civil and administrative jurisdiction.

Article 191 of the Criminal Procedure Code provides for a protocol-based form of pre-trial investigation by internal affairs bodies in relation to criminal misdemeanours, including offences under Article 109-1. (Zakon i Pravo)

11. Specific Feature: Parts 1 and 2 of Article 109-1 Have Different Prosecution Procedures

This is one of the most important procedural issues.

Article 32 of the Criminal Procedure Code expressly classifies part 1 of Article 109-1 as an offence subject to private-public prosecution.

However, part 2 of Article 109-1 is not included in the list set out in part 3 of Article 32 of the Criminal Procedure Code.

Consequently, part 2 of Article 109-1 falls within the category of public prosecution. (Zakon i Pravo)

This is fundamental.

Under part 1

Proceedings may be initiated only upon a complaint by the victim, subject to the exceptions established by law.

Under part 2

Criminal prosecution is conducted as a public prosecution and does not depend on whether the victim supports the prosecution.

This means that, after receiving information indicating the elements of an offence under part 2 of Article 109-1, state authorities cannot treat the case solely as a “personal conflict” that is automatically terminated because the victim withdraws their complaint.

12. Pre-Trial Procedure

For part 2 of Article 109-1, there is no mandatory civil-law pre-trial procedure.

The criminal procedural mechanism applies in this case.

In practice, the victim:

1. reports the offence;
2. contacts the police;
3. provides information concerning the episodes;
4. identifies witnesses;
5. provides medical documents;
6. provides photographs and video recordings;
7. provides correspondence;
8. identifies previous episodes;
9. reports any previous complaints made to the police.

In cases of domestic violence, an application or report also constitutes grounds for taking individual preventive measures. (Zakon i Pravo)

13. Protocol-Based Pre-Trial Investigation

Article 191 of the Criminal Procedure Code provides for a protocol-based form of pre-trial investigation in relation to certain criminal misdemeanours.

Article 109-1 is expressly included in the relevant list. (Zakon i Pravo)

This means that proceedings in a case involving beatings may have a more simplified structure compared with a full investigation of a crime.

However, the simplified nature of the procedure does not release the investigating authority from its obligation to prove every element of the offence.

This is particularly important with regard to the element:

“repeatedly”.

14. What Exactly Must Be Proven in Relation to the Element of “Repetition”

It is insufficient for the charge to simply state:

“the suspect repeatedly inflicted beatings”.

The following details must be specified:

Episode No. 1

• date;
• time;
• location;
• method;
• specific actions;
• victim;
• infliction of physical pain;
• absence of minor bodily harm;
• intent.

Episode No. 2

The same details must be established.

Connection Between the Episodes

It must be established that both acts:

• constitute criminal offences;
• are identical in nature;
• were committed by the same person;
• were not previously the subject of a final court decision and did not result in release from criminal liability;
• do not constitute part of a single continuing offence.

This approach is consistent with Article 12 of the Criminal Code and the clarifications of the Supreme Court. (Adilet)

15. Evidence

Articles 113–124 of the Criminal Procedure Code are of key importance.

The evidence must make it possible to establish:

1. the event;
2. the time;
3. the location;
4. the method;
5. the person;
6. the form of guilt;
7. the motive, where necessary;
8. the nature of the harm caused;
9. the absence of minor bodily harm;
10. the existence of several independent episodes.

16. Testimony of the Victim

Article 115 of the Criminal Procedure Code provides for the possibility of using the victim's testimony.

However, the testimony must be verified in conjunction with other evidence.

Consistency is particularly important:

“The first time was on such-and-such date, the second time was on such-and-such date.”

If the victim initially states:

“He hit me several times”,

and subsequently states:

“This happened on three separate days”,

the investigating authority must clarify whether these were:

• several blows;
• several conflicts;
• or independent episodes.

The victim's testimony, if not corroborated by other evidence, may be examined for completeness, consistency and reliability.

Article 115 of the Criminal Procedure Code expressly provides that information given by the victim cannot be used as evidence if the victim is unable to identify the source of their knowledge. (Zakon i Pravo)

17. Medical Documentation

For the purposes of Article 109-1, it is fundamentally important to establish:

whether physical pain was caused but no minor bodily harm was inflicted.

Therefore, the following are important:

• emergency trauma centre certificate;
• medical records;
• forensic medical examination report;
• photographs;
• treatment records;
• information concerning temporary incapacity for work;
• conclusions regarding the nature of bodily injuries.

At the same time, the absence of visible external marks does not automatically mean that no beatings occurred.

The Supreme Court's Regulatory Resolution defines beatings in terms of physical pain and the absence of the relevant bodily harm. (Adilet)

18. Video Footage from Surveillance Cameras

The following are particularly important:

• entrance cameras;
• courtyard cameras;
• parking lot cameras;
• shop cameras;
• vehicle dashcams;
• intercom cameras.

In relation to the element of “repetition”, video footage may sometimes be more significant than medical records.

For example:

Video No. 1: 10 August — assault.

Video No. 2: 22 August — a new assault.

If the person is identified, this may confirm that the episodes were independent.

19. Correspondence and Voice Messages

They may be used as evidentiary information, provided that the requirements of the Criminal Procedure Code are observed.

Messages such as the following are particularly important:

“Last time I hit you because…”

or:

“If you come again, I will beat you again.”

However, the correspondence must be examined in terms of:

• authenticity;
• authorship;
• context;
• timing;
• integrity;
• absence of editing or manipulation.

20. Witnesses

Witnesses who observed different episodes are particularly valuable.

For example:

• a neighbour witnessed the first episode;
• a colleague witnessed the second;
• a relative witnessed the consequences of the third.

This makes it possible to rebut the argument that there was only one conflict.

21. Circumstantial Evidence

The following may be relevant:

• seeking medical assistance immediately after an episode;
• a call to 102;
• a message to a relative;
• a note on a phone;
• a photograph;
• an audio recording;
• contacting a crisis centre;
• contacting a psychologist;
• correspondence;
• testimony from neighbours.

Taken together, such information may confirm the sequence of the episodes.

22. Principle of Examination of Evidence

Article 124 of the Criminal Procedure Code requires a comprehensive and objective examination of evidence, including:

• analysis;
• comparison;
• obtaining additional evidence;
• verification of sources.

(Zakon i Pravo)

Therefore, the court should not limit itself to the statement:

“The victim reported that this happened repeatedly”.

It is necessary to establish how many episodes occurred and what evidence supports each of them.

23. Who Participates in the Case

The main participants are:

1. Court

Examines the case and issues the final decision.

2. Prosecutor

Performs prosecution functions within the limits established by law.

3. Suspect / Accused / Defendant

The person against whom the relevant offence is alleged.

4. Defence Counsel

A lawyer.

5. Victim

A person who has suffered direct physical, moral or property damage.

6. Victim's Representative

Including a lawyer.

7. Witnesses.

8. Expert.

9. Specialist.

10. Civil Claimant

If a claim for compensation for damage has been filed.

11. Civil Defendant

If the relevant civil claim has been brought in the criminal proceedings.

Article 109 of the Criminal Procedure Code provides for the right of persons to request recognition of their status as participants in the proceedings where the grounds established by law exist. (Zakon i Pravo)

24. The Victim and Moral Damage

The victim has the right to file a civil claim for compensation for moral damage.

Article 71 of the Criminal Procedure Code provides for the consideration of the victim's claim for moral damage in criminal proceedings. If such a claim has not been filed or has been left without consideration, the law provides for the possibility of applying separately through civil proceedings. (Zakon i Pravo)

25. Civil Claim

Article 167 of the Criminal Procedure Code is of particular importance.

A claim may be filed:

from the commencement of the pre-trial investigation until the conclusion of the judicial investigation.

The subject matter of the claim may include:

• property damage;
• moral damage;
• expenses directly caused by the offence.

(Zakon i Pravo)

26. State Duty

Two issues must be distinguished here.

Criminal Prosecution

No state duty is payable for filing an application requesting that a person be held criminally liable.

Civil Claim Within Criminal Proceedings

The claimant is exempt from paying the state duty.

This is expressly established by part 3 of Article 167 of the Criminal Procedure Code. (Zakon i Pravo)

However, if the claim is granted, the court may decide to recover the state duty from the defendant in favour of the state.

This is explained in the Supreme Court's Regulatory Resolution on the consideration of civil claims in criminal proceedings. (Zakon i Pravo)

27. Amount of Moral Damage

In cases involving beatings, moral damage may include:

• physical suffering;
• emotional distress;
• fear;
• humiliation;
• loss of the sense of security;
• consequences for family and social life;
• the need to seek medical or psychological assistance.

However, the amount of compensation does not automatically follow from the classification of the offence under Article 109-1 of the Criminal Code.

The following must be proven:

• the fact of the violation;
• the nature of the suffering;
• the circumstances;
• the duration;
• the consequences;
• the degree of impact.

28. Practical Time Limit for Filing a Civil Claim

Three different time limits must be distinguished here.

First — the limitation period for criminal prosecution

For a criminal misdemeanour — one year from the date of commission of the criminal offence.

Article 71 of the Criminal Code expressly establishes a one-year period for a criminal misdemeanour. (Zakon i Pravo)

Second — the time limit for filing a civil claim in criminal proceedings

Under Article 167 of the Criminal Procedure Code — from the commencement of the pre-trial investigation until the conclusion of the judicial investigation. (Zakon i Pravo)

Third — the civil limitation period

If the claim is subsequently filed separately under civil procedure, the provisions of the Civil Code concerning limitation periods must be applied.

As a general rule, the general limitation period is three years. (Zakon i Pravo)

29. Restoration of the Limitation Period

Article 185 of the Civil Code of the Republic of Kazakhstan provides for the restoration of the limitation period in exceptional cases.

Valid reasons may include circumstances relating to the claimant personally, such as:

• serious illness;
• helpless condition;
• illiteracy;
• other exceptional circumstances.

The reason must relate to the final period of the limitation period, generally the last six months. (Zakon i Pravo)

However, it is fundamentally important to distinguish between:

limitation periods and procedural time limits.

These are not the same thing.

30. Restoration of a Procedural Time Limit

If a procedural time limit under the Criminal Procedure Code has been missed, the mechanism for restoring procedural time limits provided for by criminal procedural legislation applies.

Therefore, the complaint must clearly specify:

1. which particular time limit was missed;
2. which provision of law establishes it;
3. when the time limit began to run;
4. when it expired;
5. for what reason it was missed;
6. when the impediment ceased to exist;
7. what evidence confirms the validity of the reason for missing the time limit.

 31. Can the victim “restore” the one-year limitation period for criminal prosecution?

Caution is required here.

The one-year period under Article 71 of the Criminal Code is a limitation period for bringing a person to criminal liability, not an ordinary procedural time limit for filing a complaint.

Therefore, the mechanism for restoring a procedural time limit cannot be applied to it merely by analogy.

Furthermore, in the case of criminal misdemeanors, pursuant to Article 71 of the Criminal Code, the limitation period is neither suspended nor interrupted, regardless of whether a new criminal offense is committed. (Law and Legal Practice)

32. Reconciliation of the parties

Article 68 of the Criminal Code of the Republic of Kazakhstan provides for exemption from criminal liability in connection with reconciliation.

The general framework for a criminal misdemeanor is as follows:

1. reconciliation with the victim;
2. including through mediation;
3. making amends for the harm caused.

(Law and Legal Practice)

Where the conditions established by law are met, exemption from criminal liability is mandatory.

The Supreme Court emphasizes that the criminal prosecution authority and the court are obliged to explain to the parties their right to reconciliation. (Law and Legal Practice)

33. The specific features of repetition and reconciliation

Part 4 of Article 68 of the Criminal Code is particularly important.

The law specifically establishes restrictions for persons who have previously been exempted from criminal liability for certain criminal offenses and subsequently commit the relevant acts again.

There is special regulation concerning Article 109-1: the legislation restricts the application of reconciliation where certain offenses are committed repeatedly within the limitation period following a previous exemption from criminal liability for the relevant criminal offense. (Law and Legal Practice)

Therefore, in a case involving repeated battery, it is necessary to establish:

• whether there was a previous criminal case;
• how it was concluded;
• whether a conviction was rendered;
• whether there was an exemption from criminal liability;
• whether the case was terminated due to reconciliation;
• when this occurred.

34. Reconciliation and making amends for harm

The Supreme Court states that making amends for harm must be real and must take place before the decision to exempt the person from criminal liability is made.

A mere promise:

“I will pay later”

is not always sufficient.

Furthermore, if the parties dispute the amount of compensation for the harm caused, this may indicate that reconciliation has not actually been achieved. (Law and Legal Practice)

35. Mediation

Mediation may be used to reach an agreement between:

• the victim;
• the suspect;
• the accused;
• the defendant.

However, the mediator does not determine the person's guilt.

Their task is to facilitate the resolution of the conflict.

The Supreme Court separately states that, in cases provided for by law, the criminal prosecution authority may not refuse the parties' motion to involve a mediator. (Law and Legal Practice)

36. Special requirements concerning conduct

There is another important mechanism under Part 2 of Article 109-1.

Article 98-3 of the Criminal Code provides for the possibility of the court imposing special requirements concerning the conduct of a person who has committed a criminal offense.

These may include:

• psychological assistance;
• a prohibition on certain contacts;
• a prohibition on searching for the victim;
• a prohibition on stalking;
• a prohibition on visiting certain places;
• other restrictions.

The period may range from three months to one year. (Law and Legal Practice)

It is particularly important that the legislator has separately provided for special requirements applicable to a person in respect of whom the pre-trial investigation has been terminated due to reconciliation under Part 2 of Article 109-1.

37. Domestic violence

If battery is committed in the family and domestic sphere, the special mechanisms provided for by the legislation on the prevention of domestic violence are also applied concurrently.

The law provides for:

• preventive interviews;
• bringing the person in;
• a protective order;
• administrative detention;
• special requirements;
• preventive registration;
• other measures.

(Law and Legal Practice)

38. Protective order

Article 20 of the Law of the Republic of Kazakhstan “On the Prevention of Domestic Violence” provides for a protective order.

It may prohibit:

• committing domestic violence;
• searching for the victim;
• stalking;
• visiting the victim;
• calling the victim;
• otherwise contacting the victim against their will.

The period of validity is 30 days. (Law and Legal Practice)

This is particularly important in cases involving recurring incidents.

39. Procedural significance of a previously issued protective order

The mere existence of a protective order does not automatically prove guilt under Part 2 of Article 109-1.

However, it may be relevant to:

• confirming the existence of a pre-existing conflict;
• confirming previous complaints made by the victim;
• establishing the sequence of events;
• assessing the risk of repeated violence;
• examining the parties' accounts;
• deciding on safety measures.

40. Measures of procedural coercion

Article 155 of the Criminal Procedure Code provides for other measures of procedural coercion, including:

• an undertaking to appear;
• compulsory appearance;
• temporary suspension from office;
• seizure of property;
• a prohibition on approaching the victim.

(Law and Legal Practice)

In cases involving repeated violence, a prohibition on approaching the victim is of particular importance where the statutory grounds for its application exist.

41. Detention

Where the grounds provided for by the Criminal Procedure Code exist, the suspect may be detained.

However, the mere fact that the victim states:

“he has beaten me before”

does not automatically justify detention.

The grounds prescribed by law must exist.

42. Measures to ensure the victim's safety

Where there is a threat to:

• life;
• health;
• property;
• relatives;
• witnesses,

the issue of applying safety measures should be raised.

This is particularly important in cases involving repeated violence, since previous incidents may indicate an ongoing conflict.

43. Proving intent

Article 109-1 presupposes intentional actions.

It is necessary to establish that:

• the person was aware of the nature of their actions;
• the person intended to use physical force;
• or consciously allowed physical pain to be inflicted.

An accidental collision:

“pushed someone on a bus”

does not, in itself, constitute battery.

44. Motive

For the purpose of qualification specifically under subparagraph 7) of Part 2 of Article 109-1, the motive of “repetition” is not required in itself.

However, motive may be relevant to establishing other qualifying elements:

• hooligan motives;
• hatred;
• connection with the performance of professional or public duties;
• dependency;
• helplessness;
• minority of age.

If several qualifying elements under Part 2 are present simultaneously, they must be duly reflected in the charge and the judgment.

45. Repetition + hooligan motive

For example:

• the first incident was committed with hooligan motives;
• the second incident was also committed in a public place with hooligan motives.

In such a case, both qualifying elements must be established.

It is not sufficient to limit the wording to:

“committed repeatedly”.

46. Repetition + a minor

If the victim is knowingly a minor, the issue of subparagraph 8) of Part 2 of Article 109-1 additionally arises.

Consequently, the charge may simultaneously include:

• repetition;
• knowing that the victim is a minor.

47. Repetition + two victims

If the actions are committed against two or more persons, subparagraph 1) of Part 2 becomes relevant.

Where there are several incidents, it is necessary to establish whether each incident is independent and which qualifying elements are covered by the charge.

48. An important Supreme Court rule concerning several parts of the same article

The Supreme Court states that where several criminal offenses fall under different parts of the same article and those parts provide for different qualifying elements, the acts as a whole are classified under the part providing for the more severe punishment and covering the relevant elements, while the other qualifying elements must be reflected in the judicial act. (Law and Legal Practice)

This rule is directly relevant when qualifying several incidents of battery.

49. Application of Article 12 of the Criminal Code to repetition

The Supreme Court explains several important provisions:

Does not constitute repetition:

if the person has already been convicted for the previous act.

Does not constitute repetition:

if the person was previously exempted from criminal liability.

Does not constitute repetition:

a crime + a criminal misdemeanor.

May constitute repetition:

several identical criminal offenses committed before they have been resolved by a court.

(Law and Legal Practice)

50. A very important practical example

Suppose:

Incident No. 1: September 1, 2025 — battery.

Incident No. 2: September 20, 2025 — battery.

One set of proceedings is conducted in respect of both incidents.

In this case, qualification under Part 2 of Article 109-1 on the basis of repetition may be possible.

However, if:

Incident No. 1: the court has issued a final judgment.

Incident No. 2: new battery is committed one month later.

Then the first incident should no longer automatically constitute repetition within the meaning of Article 12 of the Criminal Code.

This is a different legal situation.

51. An administrative offense does not always establish criminal repetition

The distinction between administrative and criminal legislation is particularly important.

Previously, the legislation provided for administrative liability for battery.

The mere fact that a person was previously held administratively liable for battery does not automatically turn a subsequent criminal offense into repetition of criminal offenses.

For the purposes of Article 12 of the Criminal Code, a criminal-law basis for repetition is required.

52. Proving the previous incident

If the charge is based on repetition, the previous incident must be established as a legally significant criminal offense.

In other words, it is not sufficient simply to state:

“He used to beat her before”.

It is necessary to establish:

• when;
• where;
• what the person did;
• against whom;
• how physical pain was inflicted;
• why this constituted a criminal offense;
• by what evidence it is confirmed.

53. Practical issue: “he used to beat her before” without documents

In practice, the following situation is often encountered:

“The victim claims that the defendant beat her five more times before, but no complaints were filed previously”.

This does not automatically mean that the previous incidents could not have occurred.

However, in order to use them as an element of repetition, it is necessary to prove the legally significant circumstances.

It is precisely here that the defense is entitled to raise the following question:

Has the previous incident been proven to constitute a criminal offense?

54. Practical issue: one conflict — several blows

For example:

On September 15 at 21:00, a man inflicted 10 blows on a woman.

The prosecution alleges:

“Committed battery repeatedly”.

Such an allegation, in itself, is insufficient.

Number of blows ≠ number of criminal offenses.

It is necessary to prove the independence of the criminally unlawful incidents.

55. Practical issue: two conflicts on the same day

If:

• a fight occurred at 12:00;
• the parties separated;
• a new conflict occurred at 18:00;
• the person inflicted battery again,

this may indicate two independent incidents.

However, the final conclusion depends on:

• the factual circumstances;
• the time interval;
• the termination of the first conflict;
• the formation of a new intent;
• the emergence of a new reason;
• the conduct of the parties.

56. Supreme Court judicial practice

Specific judicial practice concerning Part 2 of Article 109-1 on the basis of repetition is still significantly less extensive in the public domain than practice concerning the former battery offenses and other crimes against health.

Therefore, when preparing a legal position in a case, one should not refer to a non-existent “established review of judicial practice under Part 2 of Article 109-1”.

Instead, it is necessary to use the following combination:

1. Article 12 of the Criminal Code;
2. Article 13 of the Criminal Code;
3. Article 109-1 of the Criminal Code;
4. Regulatory Resolution No. 11;
5. Regulatory Resolution No. 1 concerning crimes against life and health;
6. Regulatory Resolution No. 4 concerning reconciliation;
7. the relevant provisions of the Criminal Procedure Code.

57. Supreme Court: the main principle concerning repetition

Regulatory Resolution No. 11 is based on the need to establish:

• the number of acts;
• their sequence;
• motives;
• purposes;
• form of guilt;
• the elements of each act;
• the relationship between the relevant criminal-law provisions.

(Law and Legal Practice)

This means that the court must examine not only the most recent incident but also the legal nature of the previous incident.

58. Supreme Court: battery

Regulatory Resolution No. 1 provides the current definition of battery:

the intentional infliction of blows that cause physical pain but do not result in a short-term health disorder or a minor permanent loss of general working capacity.

Other violent acts also include:

• striking;
• pinching;
• tying up;
• twisting an arm;
• other intentional acts that cause physical pain.

(Adilet)

59. Appellate practice

The key grounds for appellate review may include:

1. Incorrect legal qualification

For example, the court established repetition without determining that there were two independent incidents.

2. Lack of proof

The previous incident is confirmed only by assumptions.

3. Violation of the right to defense

The defense was not given an opportunity to examine the evidence.

4. Incorrect assessment of the expert examination

For example, the conclusion regarding minor bodily harm contradicts the case materials.

5. Incorrect application of Article 68 of the Criminal Code

Despite the existence of reconciliation and making amends for the harm, the court failed to examine the issue of terminating the case.

60. Court of first instance: issues that must be resolved

The judgment should ideally contain answers to at least the following questions:

1. Did the act of violence occur?
2. Was there intent?
3. Was physical pain inflicted?
4. Was minor bodily harm caused?
5. Who committed the acts?
6. When was the first incident committed?
7. When was the second incident committed?
8. Why are the incidents independent?
9. Why are they identical?
10. Why does Part 2 of Article 109-1 apply specifically?
11. Are there any elements of Article 110?
12. Are there grounds for applying Article 68?
13. Has the harm been remedied?
14. Is there a civil claim?
15. Has its amount been proven?

61. What Is More Important for the Defense

In a case under Part 2 of Article 109-1 of the Criminal Code of the Republic of Kazakhstan, the defense must not limit itself solely to denial:

“I did not hit anyone.”

Alternatively, the issue of legal classification must also be examined:

First level

The fact that the incident occurred has not been proven.

Second

The identity of the person has not been established.

Third

No physical pain was caused.

Fourth

There is medical evidence of harm — in this case, a different issue of legal classification arises.

Fifth

There is only one episode.

Sixth

The previous episode has not been proven.

Seventh

The episodes constitute a continuing act.

Eighth

The previous criminal offense has already been the subject of a court decision.

Ninth

There are grounds for termination under Article 68 of the Criminal Code.

62. What Is More Important for the Victim

Conversely, the victim should document each episode separately.

It is advisable to prepare a chronology:

This format enables the investigation and the court to identify precisely separate, independent episodes.

63. Measures to Secure a Civil Claim

Where there is a risk of alienation of property, the issue of securing a civil claim should be raised where the statutory grounds exist.

The Regulatory Resolution of the Supreme Court on civil claims in criminal proceedings requires measures to be taken to ensure the actual enforcement of the decision. (Law and Legal Practice)

64. Litigation Expenses

In addition to moral damages, expenses directly related to the criminal offense may also be claimed, for example:

• medical treatment;
• medicines;
• medical examinations;
• transportation expenses related to medical treatment;
• other substantiated expenses.

The Supreme Court indicates that, when considering a civil claim, the following must be established:

• the grounds;
• the type of damage;
• its nature;
• its amount;
• the causal link;
• the person liable for the damage.

(Law and Legal Practice)

65. If the Civil Claim Is Not Considered

If no claim is filed or if it is left without consideration, the victim may use civil proceedings where there are legal grounds to do so.

Article 71 of the Criminal Procedure Code expressly provides for this possibility in relation to moral damage. (Law and Legal Practice)

66. Judicial Practice on the Restoration of Time Limits

The publicly available materials of Zakonpravo contain judicial practice illustrating the general approach to the restoration of time limits: the court must assess not only whether a reason existed, but also its objective connection with the impossibility of applying in a timely manner to protect the right.

For example, one published material concerning the restoration of a time limit describes a case in which the court examined the circumstances of a person's prolonged failure to apply to law enforcement authorities and whether those circumstances had genuinely and objectively prevented a timely application. (Law and Legal Practice)

Another published material contains a motion to restore a time limit in which the applicant substantiated the missed deadline by reference to a combination of objective circumstances; however, the mere fact of lacking legal knowledge does not constitute a universal ground for restoring a time limit. (Law and Legal Practice)

This is also important for assault cases:

The mere statement “I did not know about the time limit” is generally much weaker than a situation in which the objective impossibility of applying in a timely manner has been proven.

67. International Standards

The legal classification of assault must be considered in the context of Kazakhstan's international obligations to protect the inviolability of the human person.

International Covenant on Civil and Political Rights

Article 7 of the ICCPR, which prohibits torture and cruel, inhuman or degrading treatment or punishment, is of particular importance.

For national criminal proceedings, this means the necessity of:

• effectively investigating allegations of violence;
• protecting the victim;
• preventing impunity;
• observing the procedural guarantees of the accused.

68. Convention on the Rights of the Child

If the victim is a child, Article 19 of the Convention on the Rights of the Child also applies.

The UN Committee on the Rights of the Child emphasizes the obligation of States to protect children from all forms of physical and mental violence and to ensure effective procedures for:

• identification;
• reporting;
• investigation;
• treatment;
• judicial intervention.

Therefore, where the victim is a minor, procedural guarantees must be considered with due regard to the enhanced protection of the child.

69. Convention on the Rights of Persons with Disabilities

For victims with disabilities, Article 16 of the Convention on the Rights of Persons with Disabilities — Protection from Exploitation, Violence and Abuse — is important.

UN materials also emphasize the need for effective investigations and legal remedies for persons with disabilities who have been subjected to violence.

70. Constitutional Foundations

The following constitutional provisions are relevant when considering the case:

• human dignity;
• personal inviolability;
• judicial protection;
• presumption of innocence;
• the right to qualified legal assistance;
• prohibition of arbitrary restrictions on rights.

The Criminal Code expressly establishes that criminal legislation is based on the Constitution and the generally recognized principles and norms of international law. (Adilet.kz)

71. Main Regulatory Legal Acts

For a comprehensive analysis of Part 2 of Article 109-1 of the Criminal Code of the Republic of Kazakhstan, the following body of legislation should be used.

I. Constitution of the Republic of Kazakhstan

Fundamental provisions:

• personal dignity;
• personal inviolability;
• judicial protection;
• presumption of innocence;
• right to defense.

II. Criminal Code of the Republic of Kazakhstan

First and foremost:

• Article 1 — Criminal legislation;
• Article 6 — Application of criminal law over time;
• Article 10 — Categories of criminal offenses;
• Article 12 — Repeated commission of criminal offenses;
• Article 13 — Aggregation of criminal offenses;
• Article 28 — Complicity;
• Article 54 — Circumstances aggravating criminal liability;
• Article 68 — Reconciliation;
• Article 71 — Statute of limitations;
• Article 98-3 — Special requirements;
• Article 108-1 — Minor bodily harm;
• Article 109-1 — Assault;
• Article 110 — Torture.

(Adilet)

III. Criminal Procedure Code of the Republic of Kazakhstan

In particular:

• Article 32 — Types of prosecution;
• Article 35 — Circumstances precluding criminal proceedings;
• Article 64 — Suspect;
• Article 68 — Defense counsel;
• Article 71 — Victim;
• Article 109 — Recognition as a participant in the proceedings;
• Articles 113–124 — Evidence and proof;
• Article 155 — Measures of procedural compulsion;
• Article 167 — Filing a civil claim;
• Article 170 — Decisions on a civil claim;
• Article 187 — Jurisdiction of pre-trial investigations;
• Article 191 — Protocol form;
• Article 408 et seq. — Private prosecution.

(Law and Legal Practice)

72. Regulatory Resolutions of the Supreme Court

The main ones are:

No. 11 of December 25, 2006

“On the Classification of Repeated Commission and Aggregation of Criminal Offenses.”

Text of Regulatory Resolution No. 11 on Zakonpravo.kz

No. 1 of May 11, 2007

“On the Classification of Certain Criminal Offenses Against Human Life and Health.”

Regulatory Resolution of the Supreme Court on Crimes Against Life and Health

No. 4 of June 21, 2001

“On Judicial Practice in Applying Article 68 of the Criminal Code of the Republic of Kazakhstan.”

Practice of Applying Reconciliation under Article 68 of the Criminal Code

No. 1 of June 20, 2005

“On Consideration of Civil Claims in Criminal Proceedings.”

Civil Claims in Criminal Proceedings — Regulatory Resolution No. 1 of the Supreme Court of the Republic of Kazakhstan

No. 4 of April 20, 2018

“On the Court Judgment.”

Regulatory Resolution on the Court Judgment

73. Law on the Prevention of Domestic Violence

If the nature of the case is related to family and domestic relations, the following provisions apply:

• Article 3 — Principles;
• Article 10 — Competence of internal affairs bodies;
• Article 17 — Individual prevention measures;
• Article 18 — Grounds for applying measures;
• Article 19 — Preventive conversation;
• Article 20 — Protective order;
• Article 21 — Administrative detention;
• Article 22 — Special requirements.

(Law and Legal Practice)

74. Law on Legal Acts

If the matter concerns subordinate regulatory legal acts applied in proceedings, the Law of the Republic of Kazakhstan dated April 6, 2016, No. 480-V, “On Legal Acts,” must be taken into account.

In particular, Article 18 regulates the procedure for drafting and coordinating draft subordinate regulatory legal acts, including:

• the competence of the drafting authority;
• coordination;
• legal review;
• public discussion;
• preparation of comparative tables;
• interaction between government bodies.

(Law and Legal Practice)

75. Subordinate Regulatory Acts That May Be Relevant

Depending on the specific circumstances of the case, the following may be used:

• rules for conducting forensic medical examinations;
• departmental acts of the Ministry of Internal Affairs;
• rules for registering reports of criminal offenses;
• acts regulating the activities of internal affairs bodies;
• acts on the prevention of domestic violence;
• rules for conducting mediation;
• regulatory acts in the field of medical documentation.

However, in principle:

A subordinate regulatory act cannot expand the elements of a criminal offense, establish new criminal liability, or worsen a person's legal position contrary to the Criminal Code.

The basis for criminal liability must be provided directly by criminal law.

76. Why Subordinate Regulatory Acts Cannot Replace the Criminal Code

The Criminal Code expressly provides that criminal legislation consists of the Criminal Code itself, and that other laws establishing criminal liability are applicable only after the relevant provisions have been incorporated into the Code. (Adilet.kz)

Therefore:

An internal instruction of the Ministry of Internal Affairs cannot, by itself, create an offense of “repeated assault.”

It may regulate the procedure for police actions, registration and documentation of reports, but legal classification must be carried out under the Criminal Code.

77. Practical Classification Framework

For any case under Part 2 of Article 109-1 of the Criminal Code of the Republic of Kazakhstan, it is recommended to use the following sequence:

Step 1.

Determine the date of each episode.

Step 2.

Identify the version of the Criminal Code in force on that date.

Step 3.

Establish the fact of the use of physical force.

Step 4.

Establish whether physical pain was caused.

Step 5.

Establish that no minor bodily harm was caused.

Step 6.

Establish intent.

Step 7.

Separate the incidents into independent episodes.

Step 8.

Verify whether they do not constitute a continuing offense.

Step 9.

Verify whether the first episode had previously been considered and resolved by a court.

Step 10.

Verify whether there had been no previous release from criminal liability.

Step 11.

Verify whether the criminal offenses are identical.

Step 12.

Verify the other qualifying elements of Part 2.

Step 13.

Examine the applicability of Article 110 of the Criminal Code.

Step 14.

Examine the grounds for applying Article 68 of the Criminal Code.

Step 15.

Verify the limitation periods.

78. Typical Error in the Prosecution

The most vulnerable formulation:

“The defendant assaulted the victim several times.”

Unless the following circumstances are specified:

• when;
• where;
• how many episodes;
• what actions;
• what evidence;
• why each episode is independent,

such an accusation may raise issues concerning the principle of specificity of the charges.

79. Typical Error in the Defense

The opposite error:

“There were no bruises, therefore there was no assault.”

This is incorrect.

The elements of an offense under Article 109-1 of the Criminal Code include the infliction of physical pain, but do not require the mandatory presence of visible injuries.

Therefore, the absence of bruising does not automatically rule out assault. (Adilet)

80. Typical Error by the Court

Another potential error:

“Since the person hit the victim several times, it follows that the person committed assault several times.”

Such a conclusion is insufficient.

The court must distinguish between:

several blows and several independent criminal offenses.

81. Classification Example No. 1

Facts

September 10:

• the victim was struck three times;
• the altercation lasted 10 minutes;
• the parties then went their separate ways.

September 20:

• a new attack;
• two blows;
• a new altercation.

Legal Assessment

Potentially, there are two independent episodes.

If each is proven to constitute assault, the issue of applying Part 2 of Article 109-1 of the Criminal Code on the basis of repeated commission arises.

82. Example No. 2 — No Repeated Commission

In one room:

• 5 blows;
• then pushing;
• then grabbing the person's arm.

All of this took place within a few minutes during one altercation.

This alone does not provide grounds for treating each action as a separate criminal offense.

A unified intent and the circumstances of the incident must be examined.

83. Example No. 3 — Possible Torture

For several weeks, a person systematically:

• assaults the victim;
• deprives the victim of food;
• ties the victim up;
• insults the victim;
• inflicts physical and psychological suffering;
• acts with the purpose of torture.

In such a case, it is necessary, first and foremost, to examine the elements of Article 110 of the Criminal Code, since simply classifying all actions as repeated assault may fail to reflect the legal nature of the conduct. (Adilet)

84. Example No. 4 — Reconciliation

Two episodes of assault have been consolidated into one case.

The suspect:

• admitted the facts;
• compensated the moral and material damage;
• reconciled voluntarily with the victim;
• concluded an agreement with the victim;
• compensated the damage.

In that case, the possibility of applying Article 68 of the Criminal Code must be considered, subject to the special restrictions established by that provision. (Law and Legal Practice)

85. Example No. 5 — A Decision Has Been Made in Respect of the Previous Episode

The first episode ended with:

• a judgment; or
• release from criminal liability.

A new assault subsequently occurred.

Under Article 12 of the Criminal Code, the first episode cannot be mechanically used to establish the qualifying element of repeated commission. (Adilet)

86. Example No. 6 — Administrative Offense

The first episode was previously concluded through administrative proceedings.

The person subsequently committed an act of assault containing the elements of a criminal misdemeanor.

The mere fact of having previously been held administratively liable does not automatically constitute proof of repeated commission of a criminal offense.

The legal nature of the previous act must be analyzed separately.

87. Victim's Litigation Strategy

For the victim, the most effective approach is:

1. not to combine all incidents into one statement such as “the person constantly assaulted me”;
2. prepare a chronology;
3. support each episode with separate evidence;
4. obtain medical records;
5. ensure the preservation of video recordings;
6. identify witnesses;
7. preserve electronic correspondence;
8. document reports to the police;
9. file a civil claim;
10. request security measures where necessary.

88. Defense Litigation Strategy

The defense must examine the following:

As to the incident

Did the assault actually take place?

As to the objective elements

Was physical pain caused?

As to the consequences

Was there minor bodily harm?

As to the subjective elements

Was there intent?

As to repeated commission

How many independent episodes are there?

As to each episode

Is there evidence?

Under Article 12

Was there any previous conviction or release from criminal liability?

As to a continuing offense

Were the actions covered by a unified intent?

Under Article 110

Are there elements of another offense?

Under Article 68

Are there grounds for reconciliation?

89. The Precise Formulation of the Charges Is of Particular Importance

For the defense, it is especially important to compare:

the descriptive part of the charges

with

the operative part of the procedural decision

and

the judgment.

If one document states:

“twice”,

another states:

“several times”,

and a third states:

“systematically”,

it is necessary to determine precisely what factual construction has been charged against the person.

90. Final Legal Position

Part 2 of Article 109-1 of the Criminal Code of the Republic of Kazakhstan, on the basis of the qualifying element of “repeated commission,” does not merely mean repeatedly inflicting several blows.

From a legal perspective, it must be established that there were several independent, homogeneous criminal offenses, which:

• were committed by the same person;
• fall under Article 109-1;
• were committed intentionally;
• caused physical pain;
• did not cause minor bodily harm;
• had not previously been resolved by a judgment or release from criminal liability;
• do not constitute one continuing criminal offense.

This approach follows directly from Article 12 of the Criminal Code and Regulatory Resolution No. 11 of the Supreme Court. (Adilet)

91. Consolidated Table

92. Practical Checklist for a Lawyer

When examining a specific case under Part 2 of Article 109-1 of the Criminal Code, I would recommend preparing a separate table of episodes:

Episode No. 1

• date;
• time;
• location;
• victim;
• action;
• physical pain;
• injuries;
• medical document;
• witnesses;
• video;
• correspondence;
• report to the police.

Episode No. 2

The same items.

Then a separate section:

Why does this not constitute one continuing offense?

Or, from the defense perspective:

Why does this constitute precisely one continuing offense?

This very issue is often the key issue for legal classification.

93. More Important Links on Zakonpravo.kz

Article 109-1 of the Criminal Code of the Republic of Kazakhstan — Assault

Article 12 of the Criminal Code of the Republic of Kazakhstan — Repeated Commission of Criminal Offenses

Article 32 of the Criminal Procedure Code of the Republic of Kazakhstan — Cases of Private, Private-Public and Public Prosecution and Accusation

Article 191 of the Criminal Procedure Code of the Republic of Kazakhstan — Pre-Trial Investigation Conducted in the Form of Inquiry and in the Protocol Form

Article 64 of the Criminal Procedure Code of the Republic of Kazakhstan — Suspect

Article 71 of the Criminal Procedure Code of the Republic of Kazakhstan — Victim

Article 115 of the Criminal Procedure Code of the Republic of Kazakhstan — Testimony of the Suspect, Victim and Witness

Article 124 of the Criminal Procedure Code of the Republic of Kazakhstan — Examination of Evidence

Article 155 of the Criminal Procedure Code of the Republic of Kazakhstan — Grounds for Applying Other Measures of Procedural Compulsion

Article 167 of the Criminal Procedure Code of the Republic of Kazakhstan — Filing a Civil Claim

Article 170 of the Criminal Procedure Code of the Republic of Kazakhstan — Decisions on a Civil Claim

Article 68 of the Criminal Code of the Republic of Kazakhstan — Release from Criminal Liability in Connection with Reconciliation

Article 71 of the Criminal Code of the Republic of Kazakhstan — Statute of Limitations

Article 98-3 of the Criminal Code of the Republic of Kazakhstan — Imposition of Special Requirements on the Conduct of a Person Who Has Committed a Criminal Offense

Regulatory Resolution No. 11 of the Supreme Court of the Republic of Kazakhstan — Repeated Commission and Aggregation of Criminal Offenses

Regulatory Resolution No. 1 of the Supreme Court of the Republic of Kazakhstan — Criminal Offenses Against Life and Health

Regulatory Resolution No. 4 of the Supreme Court of the Republic of Kazakhstan — Practice of Applying Article 68 of the Criminal Code

Regulatory Resolution No. 1 of the Supreme Court of the Republic of Kazakhstan — Civil Claims in Criminal Proceedings

Law on the Prevention of Domestic Violence — Article 20 on Protective Orders

Law on Legal Acts — Article 18 on the Procedure for Drafting and Coordinating Draft Subordinate Regulatory Legal Acts

94. Key Conclusion for Legal Classification

The main subject of proof under Part 2 of Article 109-1, subparagraph 7), of the Criminal Code of the Republic of Kazakhstan — “repeated commission” is not the number of blows inflicted, but rather the number of independent criminal offenses.

Therefore, in each specific case, it is necessary to answer four questions:

1. Did the first act constitute an independent criminal offense?

2. Did the second act constitute an independent criminal offense?

3. Were they not combined into one continuing act by a unified intent?

4. Was the first act not previously the subject of a conviction or release from criminal liability?

If at least one of these elements has not been established by appropriate evidence, the application of the qualifying element of “repeated commission” requires particularly careful substantiation by the court. (Adilet) 

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