Torture Committed Against Two or More Persons

1. Legal Framework

Subparagraph 2) of Part 2 of Article 110 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code of the RK) provides for criminal liability for the commission of torture against two or more persons.

The current wording of Article 110 of the Criminal Code of the RK provides:

“The same act, committed ... against two or more persons ... shall be punishable by imprisonment for a term of four to seven years.”

Thus, the qualifying element of “against two or more persons” falls under Part 2 of Article 110 and increases criminal liability in comparison with the basic offence provided for in Part 1 of Article 110 of the Criminal Code of the RK. (Zakon i Pravo)

For the correct legal classification, it is necessary to establish not only the fact of violence being applied to several victims, but also the presence of all the elements of the basic offence of torture provided for in Part 1 of Article 110 of the Criminal Code of the RK.

In other words:

Subparagraph 2) of Part 2 of Article 110 of the Criminal Code of the RK does not constitute an independent offence without the elements of Part 1 of Article 110 of the Criminal Code of the RK.

The following must be proven:

1. Physical or psychological suffering;
2. Caused through violent acts;
3. Particular cruelty or humiliation;
4. The purpose of inflicting torment on the victim;
5. The absence of grievous bodily harm or bodily harm of moderate severity as a consequence of the relevant act;
6. Commission of the act against two or more persons.

The current sanction under Part 2 of Article 110 is imprisonment for a term of four to seven years. Taking into account Article 11 of the Criminal Code of the RK, an intentional offence punishable by imprisonment for a maximum term not exceeding 12 years falls within the category of serious offences. Consequently, an offence under subparagraph 2) of Part 2 of Article 110 constitutes a serious offence. (Zakon i Pravo)

2. Object of the Criminal Offence

The principal direct object of the offence is the physical and psychological integrity of a person protected by criminal law, as well as their dignity.

Additional significance is attached to:

• Health;
• Personal inviolability;
• Psychological integrity;
• Honour and dignity;
• Freedom from cruel treatment;
• The right to human dignity.

Where there are several victims, the criminal infringement affects the rights of each of them.

Therefore, the harm and suffering caused to each individual victim must be assessed separately.

The fact that the accused was involved in a conflict situation with several people at the same time cannot automatically be regarded as proof that torture was committed against several persons.

3. Objective Elements of the Offence

The objective elements of torture are characterised by the commission of violent acts causing physical or psychological suffering.

At the same time, the law requires a qualitatively higher degree of violence than the mere infliction of physical pain.

Not every instance of causing pain constitutes torture.

For classification under Article 110, circumstances indicating the following must be established:

• The tormenting nature of the treatment;
• Particular cruelty;
• Humiliation;
• Systematic or otherwise intense violent acts;
• The deliberate infliction of suffering;
• The corresponding purpose of the perpetrator.

The specific methods of inflicting suffering may vary.

For example:

• Repeatedly striking a person;
• Prolonged beatings;
• Applying violence to several persons;
• Forcing one victim to witness abuse inflicted upon another;
• Violence degrading human dignity;
• Inflicting pain through various methods;
• A combination of physical and psychological violence.

However, each of these methods must be assessed in conjunction with the other circumstances of the case.

4. What Does “Against Two or More Persons” Mean?

This is the key qualifying element.

For subparagraph 2) of Part 2 of Article 110 to apply, it must be established that the criminal conduct was directed against at least two victims.

In this regard, the provision concerns victims who have directly suffered physical or psychological suffering as a result of the relevant offence.

For example:

Situation 1

A person systematically beat two family members.

If the investigation and the court establish the elements of torture in respect of each of them, subparagraph 2) of Part 2 of Article 110 may be applied.

Situation 2

A person beat one individual, while another person was merely present during the conflict.

The mere presence of the second person does not, in itself, mean that the offence was committed “against two or more persons”.

Situation 3

The perpetrator beat one victim in the presence of another person and simultaneously threatened the second person.

The issue of classification requires establishing whether the threats and psychological impact on the second person constituted conduct directly causing that person psychological suffering within the meaning of Article 110.

The second person's subjective feeling of fear alone is insufficient without establishing the relevant circumstances.

5. The Need for an Independent Assessment of Each Victim

This is one of the most important practical aspects.

If there are two victims, the investigation must establish the following in respect of each of them:

1. What specific acts were committed;
2. When they were committed;
3. How long they lasted;
4. By what means the violence was inflicted;
5. What physical suffering was caused;
6. What psychological suffering was caused;
7. Whether there was an intention to inflict torment;
8. How the subjective elements of the offence are substantiated;
9. Whether bodily injuries were sustained;
10. What the conclusions of the forensic medical and other examinations are;
11. Whether there is a causal link between the accused's actions and the victim's suffering.

It is inadmissible to formulate the charge exclusively as follows:

“The accused systematically tortured victims A and B.”

Without specifying the acts committed against each individual victim, such a charge may prove insufficiently precise.

6. Distinguishing Torture from Battery

Following the legislative amendments, particular care must be taken to distinguish Article 110 of the Criminal Code from Article 109-1 of the Criminal Code of the RK concerning battery.

Battery, in itself, does not constitute torture.

For Article 110 to apply, a more specific characteristic of the conduct must be established, namely the infliction of physical or psychological suffering through violent acts involving particular cruelty or humiliation, with the purpose of inflicting torment.

Therefore, where there are two or more victims, different legal situations may arise:

Option A

Ordinary battery was committed against two persons.

The mere fact that there are two victims does not transform the act into an offence under Article 110.

Option B

Torture has been proven in respect of each victim.

In this case, there are grounds for applying subparagraph 2) of Part 2 of Article 110.

Option C

Torture has been proven in respect of one person, while only battery has been established in respect of the second person.

In this case, each episode requires an independent legal classification.

7. Distinguishing Torture from Causing Bodily Harm

The proviso in Part 1 of Article 110 is of particular importance:

Torture must not result in grievous bodily harm or bodily harm of moderate severity.

Therefore, where such consequences occur, the issue arises as to classification under the articles concerning bodily harm or under the rules governing the concurrence of criminal offences.

The court must not mechanically classify every instance of serious physical violence under Article 110.

It is necessary to determine:

• The nature of the injury;
• The degree of severity of the harm;
• The method by which it was inflicted;
• The perpetrator's intent;
• The purpose of the conduct;
• The presence or absence of qualifying elements of other offences.

A forensic medical examination is of fundamental importance in this regard.

8. Distinguishing Torture from Torture under Article 146 of the Criminal Code of the RK

This is a fundamentally important distinction.

The Regulatory Resolution No. 7 of the Supreme Court of the Republic of Kazakhstan dated 28 December 2009 specifically indicates the need to distinguish Article 146 of the Criminal Code from Article 110 of the Criminal Code.

Where the elements of torture provided for in Article 146 of the Criminal Code are established, additional classification under Article 110 is not required.

The Supreme Court expressly clarifies that Article 146 constitutes a special provision in relation to the corresponding provision on torture, insofar as it concerns acts of torture. (Zakon i Pravo)

Under Article 146, the following are of particular significance:

• A special subject;
• A special purpose;
• Obtaining information or a confession;
• Punishment for an act committed or allegedly committed;
• Intimidation;
• Coercion;
• A discriminatory motive;
• The commission of the relevant conduct by a public official or another person acting in an official capacity, or at their instigation, with their knowledge or with their tacit consent.

The Supreme Court indicates that where all the elements of Article 146 are present, the act is fully covered by the special offence of torture, and no additional classification as torture under Article 110 is required. (Zakon i Pravo)

9. International Legal Framework

When interpreting the prohibition of cruel treatment, the international obligations of the Republic of Kazakhstan must be taken into account.

9.1. International Covenant on Civil and Political Rights

Article 7 of the ICCPR provides:

“No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.”

The Covenant has been ratified by Kazakhstan and forms part of the applicable law of the Republic of Kazakhstan. (Zakon i Pravo)

10. United Nations Convention against Torture

The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment is of particular importance.

Kazakhstan acceded to the Convention in 1998.

The Convention requires the adoption of effective legislative, administrative, judicial and other measures to prevent torture.

Article 13 provides for the right of a person alleging that they have been subjected to torture to lodge a complaint and have it promptly and impartially examined.

Article 14 provides for the right of a victim of torture to redress and fair and adequate compensation.

Article 15 prohibits the use of confessions obtained as a result of torture as evidence.

Article 16 extends the obligation of prevention to other acts of cruel, inhuman or degrading treatment that do not fall within the definition of torture. (ZakonPravo Mail)

For Article 110, this is relevant primarily in terms of the general principle of protecting human dignity and distinguishing torture from other forms of cruel treatment.

11. Subject of the Offence

The general subject of criminal liability is a sane natural person who has attained the age of criminal responsibility.

At the same time, classification under subparagraph 2) of Part 2 of Article 110 does not require the existence of any special official or other status.

This is precisely what distinguishes this offence from the special offence of torture under Article 146 of the Criminal Code.

12. Subjective Elements of the Offence

Torture involves intentional conduct.

The purpose is of particular importance:

to inflict torment on the victim.

Consequently, it is necessary to establish not merely the intention to use physical force, but also the corresponding direction and purpose of the conduct.

The following may be considered as evidence:

• The content of threats;
• The nature of the acts;
• The duration of the impact;
• Repetition;
• The selection of methods for inflicting pain;
• Statements made by the accused;
• Conduct before and after the episodes;
• The relationship between the parties;
• Acts aimed at humiliating the victim;
• The creation of a situation of fear;
• Continuation of the violence after the victim has ceased resisting.

13. Can a Single Episode Constitute Torture?

The absence of repeated conduct does not, in itself, automatically exclude the application of Article 110.

The key issue is to establish the elements of causing physical or psychological suffering through violent acts involving particular cruelty or humiliation, with the purpose of inflicting torment.

Therefore, the court must assess not only the number of episodes, but also:

• Intensity;
• Duration;
• Method;
• Nature of the violence;
• Psychological impact;
• Purpose;
• Circumstances of commission.

However, if the charge is based exclusively on a single, brief use of force, without evidence of particular cruelty, humiliation and the purpose of inflicting torment, serious questions arise regarding the correctness of classification under Article 110.

14. Classification Where There Are Two Victims

Assume that:

A systematically beat B and C.

The investigation must establish the following:

In respect of B:

• Specific episodes;
• Nature of the violence;
• Consequences;
• Suffering;
• Purpose;

In respect of C:

• Specific episodes;
• Nature of the violence;
• Consequences;
• Suffering;
• Purpose.

If the elements of torture are proven in respect of both victims, the qualifying element of “against two or more persons” has a factual basis.

15. Where There Are Three, Four or More Victims

The law uses the wording:

“against two or more persons”.

Consequently, the minimum threshold is two persons.

The provision does not, in itself, establish any additional independent qualifying significance for the number of victims exceeding two.

However, the number of victims may be taken into account by the court when determining the sentence, as a characteristic of the actual degree of public danger of the offence.

16. Concurrence of Criminal Offences

Where different independent criminal offences have been committed against several persons, the issue of concurrence must be resolved.

For example:

• Torture against A;
• Intentional infliction of minor bodily harm against B;
• Threats against C.

In such a case, all the acts must not automatically be combined into a single offence.

It is necessary to establish:

• Unity of intent;
• A single or separate intent;
• A common object;
• The independence of the episodes;
• The time and circumstances of commission.

17. Jurisdiction

17.1. Court of First Instance

As a general rule, criminal cases are heard by district courts and courts equivalent to them.

Article 306 of the Criminal Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Procedure Code of the RK) establishes that district and equivalent courts act as courts of first instance and hear all criminal cases, except for cases assigned by law to the jurisdiction of specialised courts. (Zakon i Pravo)

Therefore, a criminal case under subparagraph 2) of Part 2 of Article 110 is generally heard by the relevant district or equivalent court.

At the same time, specific jurisdiction is determined taking into account:

• The category of the accused;
• Their age;
• Their status;
• The place where the offence was committed;
• The presence of a juvenile defendant;
• Other special rules of the Criminal Procedure Code.

18. Territorial Jurisdiction

Article 314 of the Criminal Procedure Code of the RK establishes the general rule:

A criminal case shall be heard by the court at the place where the criminal offence was committed.

If the offence began in one place and was completed in another, the special rules of Article 314 shall apply.

If the place of commission cannot be determined or offences were committed in different places, the case shall be heard at the place where the pre-trial investigation was completed, in accordance with the procedure established by the Criminal Procedure Code. (Zakon i Pravo)

This is particularly important in cases under Article 110 where domestic violence continued:

• In several apartments;
• In different districts;
• In different populated areas;
• Against different victims.

19. Competence: Correct Terminology

In relation to an offence under Article 110, it is more appropriate to refer not to “subject-matter jurisdiction” in the civil-law sense, but rather to:

• Investigative jurisdiction;
• Court jurisdiction;
• Competence of the criminal prosecution authority;
• Judicial jurisdiction.

The concept of subject-matter jurisdiction is primarily characteristic of the distinction between civil, administrative and other categories of cases.

20. Investigative Jurisdiction

Part 1 of Article 110 belongs to the category of criminal offences for which the Criminal Procedure Code provides for an inquiry conducted by the internal affairs authorities.

However, Part 2 of Article 110 constitutes a more serious offence and must not automatically be equated with the investigation procedure applicable to Part 1.

This is an important practical issue: when reclassifying an offence from Part 1 to Part 2, it is necessary to take into account the change in the procedural regime of the investigation and the corresponding competence of the investigative authority. (Zakon i Pravo) 

21. Form of Criminal Prosecution

Article 32 of the Criminal Procedure Code of the Republic of Kazakhstan (CPC RK) expressly classifies Part One of Article 110 as a case of private-public prosecution.

At the same time, Part Two of Article 110 is not included among cases of either private or private-public prosecution.

Consequently, Part Two of Article 110 falls within the category of public prosecution cases. (Закон и Право)

This is of fundamental importance.

For an accusation under Subparagraph 2) of Part Two of Article 110:

• Criminal prosecution does not depend on the victim's wishes;
• The victim's withdrawal of claims does not, in itself, terminate the proceedings;
• The absence of a civil claim does not prevent criminal prosecution;
• The prosecutor supports the public prosecution;
• Reconciliation is governed by the general rules of Article 68 of the Criminal Code, provided that the legal requirements of that provision are met.

22. State Duty

No state duty is payable for criminal prosecution in a criminal case.

If the victim files a civil claim within the framework of criminal proceedings, Article 167 of the CPC expressly provides that:

A claimant filing a civil claim in a criminal case is exempt from payment of state duty.

Furthermore, the jurisdiction of the civil claim is determined by the jurisdiction of the criminal case, and the claim is considered jointly with the criminal case. (Закон и Право)

This fundamentally distinguishes a civil claim filed in criminal proceedings from an independent civil lawsuit.

23. Civil Claim

Article 166 of the CPC provides for the possibility of considering the following claims within criminal proceedings:

• Claims for compensation for property damage;
• Claims for compensation for moral harm;
• Medical treatment expenses;
• Funeral expenses;
• Expenses related to participation in the proceedings;
• Legal representation expenses and other expenses provided for by law.

(Закон и Право)

In a case involving several victims, it is possible to file:

• One separate claim by each victim;
• Claims through representatives;
• Claims for compensation for moral harm;
• Property-related claims;
• Claims for medical treatment expenses;
• Claims for psychological assistance expenses;
• Claims for legal representation expenses, where the grounds provided for by law exist.

24. Time Limit for Filing a Civil Claim in Criminal Proceedings

This must be clearly distinguished from the limitation period for criminal prosecution.

Article 167 of the CPC of the Republic of Kazakhstan establishes a special procedural rule:

A civil claim may be filed from the commencement of pre-trial investigation until the conclusion of the judicial investigation.

Thus, in criminal proceedings, this is not the ordinary three-year limitation period for bringing a civil claim.

Consequently, if the victim has not filed a claim at the pre-trial stage, they retain the right to file it directly in court before the conclusion of the judicial investigation. (Закон и Право)

25. Is It Necessary to Reinstate the Time Limit for Filing a Civil Claim?

If the criminal case is still under consideration and the judicial investigation has not been completed, the issue of reinstating the time limit under Article 185 of the Civil Code generally does not arise at all.

The reason is simple:

Article 167 of the CPC provides a special procedural period for filing a civil claim.

Therefore, if the victim files a civil claim before the conclusion of the judicial investigation, the claim cannot be rejected solely on the grounds that a significant amount of time has elapsed since the date of the crime.

26. Limitation Period for an Independent Civil Claim

If the victim did not file a civil claim within the criminal proceedings and intends to apply separately under the civil procedure rules, the issue of the limitation period arises.

In this regard, it is necessary to distinguish between:

Property damage

As a general rule, the limitation period established by civil legislation applies, unless otherwise provided by law.

Moral harm

As a rule, the limitation period does not apply to claims for compensation for moral harm, since such claims concern the protection of personal non-property rights and intangible benefits.

This is expressly clarified in Regulatory Resolution No. 7 of the Supreme Court of the Republic of Kazakhstan dated November 27, 2015. (Закон и Право)

27. Reinstatement of the Limitation Period

For an independent civil claim, the special legal mechanism for reinstatement of the limitation period applies.

Article 185 of the Civil Code of the Republic of Kazakhstan provides for the possibility of reinstating an expired limitation period in exceptional circumstances where the court recognizes the reason for missing the deadline as valid and related to the claimant's personal circumstances, for example:

• Serious illness;
• A helpless condition;
• Illiteracy;
• Other exceptional circumstances.

In practice, mere lack of knowledge of the law should not automatically be recognized as a sufficient reason.

In this regard, the court examines:

• The objective nature of the reason;
• The duration of the obstacle;
• The connection between the obstacle and the inability to apply to the court;
• The moment when the obstacle ceased to exist;
• The claimant's conduct after the obstacle ceased to exist.

There is also judicial practice concerning reinstatement of the limitation period, including materials published on zakonpravo.kz. (Закон и Право)

28. The Absence of a Limitation Period for Claims for Compensation for Moral Harm Is of Particular Importance

For a victim of torture, this is one of the most significant provisions.

Regulatory Resolution No. 7 of the Supreme Court dated November 27, 2015, states that the limitation period does not apply to claims for compensation for moral harm, except in cases specifically provided for by law.

At the same time, the claimant must prove:

• The violation of a personal non-property right;
• The existence of emotional and/or physical suffering;
• Causation;
• The circumstances justifying the amount of compensation. (Закон и Право)

29. Amount of Compensation for Moral Harm

In cases of torture, moral harm may be caused by:

• Physical pain;
• Fear;
• Humiliation;
• A sense of helplessness;
• Prolonged stress;
• Sleep disturbances;
• The need for medical treatment;
• Psychological consequences;
• Changes in lifestyle;
• The breakdown of family and social relationships.

The Supreme Court indicates that both the victim's subjective assessment of the degree of suffering and objective evidence must be taken into account:

• The significance of the violated interest;
• The degree of suffering;
• The consequences;
• The form of guilt;
• Other circumstances of the case.

(ЗаконПраво Почта)

30. Categories of Participants in Criminal Proceedings

In a case under Part Two of Article 110, the following participants may be involved:

1. Suspect

A person in respect of whom the grounds for suspicion предусмотрены by the CPC exist.

2. Accused

After acquiring the corresponding procedural status.

3. Defendant

After the case has been referred to court.

4. Victims

Each person who has directly suffered:

• Moral harm;
• Physical harm;
• Property damage.

Article 71 of the CPC expressly provides for this structure. (Закон и Право)

5. Representatives of Victims

Including an advocate.

6. Civil Claimants

Where a civil claim has been filed.

7. Civil Defendants

Where grounds exist for imposing material liability.

8. Prosecutor

Supports the public prosecution.

9. Investigator/Inquiry Officer

Depending on the form of pre-trial investigation.

10. Specialists and Experts

Forensic medical and psychological examinations are particularly important.

31. Several Victims — Several Independent Procedural Participants

If torture has been committed against three persons, it is not necessary to limit recognition of victim status to only one person.

Article 71 of the CPC is based on the fact that a specific person has suffered direct harm.

Therefore:

A — victim; B — victim; C — victim.

Each of them has an independent scope of procedural rights.

Each may:

• Give testimony;
• Submit evidence;
• File motions;
• Have a representative;
• File a civil claim;
• Appeal decisions;
• Participate in court hearings.

(Закон и Право)

32. Reconciliation with Several Victims

An extremely important clarification of the Supreme Court applies here.

If the requirements for reconciliation under Article 68 of the Criminal Code must be met and there are several victims, reconciliation must be achieved with all victims, provided that each of them is a direct victim of the relevant criminal offence.

The Supreme Court expressly states:

If reconciliation has not been achieved with at least one of the victims, the person is not subject to exemption from criminal liability under Article 68 of the Criminal Code. (Закон и Право)

This is particularly important in relation to Subparagraph 2) of Part Two of Article 110.

33. Applicability of Article 68 of the Criminal Code

Subparagraph 2) of Part Two of Article 110 provides for a punishment of imprisonment for a term of four to seven years.

Consequently, under Article 11 of the Criminal Code, this constitutes a serious crime.

As a general rule, Part One of Article 68 of the Criminal Code applies only to:

• Criminal misdemeanors;
• Minor crimes;
• Crimes of medium gravity.

However, Part Two of Article 68 allows certain categories of persons who have committed a serious crime for the first time to be exempted from criminal liability, provided that the conditions established by law are met.

Such categories include, in particular:

• Minors;
• Pregnant women;
• Women who have or are raising a young child;
• Men raising a young child on their own;
• Women aged 58 and above;
• Men aged 63 and above.

A combination of conditions must be met, including reconciliation and redress of the harm caused. (Закон и Право)

34. Restriction on the Application of Article 68 in Cases of Violence Against Minors

This is an extremely important qualification.

Part Four of Article 68 excludes the application of the reconciliation mechanism to crimes involving violence against minors, subject to the exceptions established by law.

Consequently, if Subparagraph 2) of Part Two of Article 110 is applied because the torture was committed against two minors or because a minor is one of the direct victims, the issue of applying Article 68 requires particularly careful examination.

It is not sufficient to proceed solely on the basis that the crime is serious and the perpetrator belongs to a special category.

All prohibitions set out in Part Four of Article 68 must be examined. (Закон и Право)

35. Voluntary Nature of Reconciliation

The Supreme Court requires that the genuine voluntary nature of the victim's expression of will be established.

Reconciliation cannot result from:

• Pressure;
• Threats;
• Dependence;
• Coercion;
• Blackmail;
• Financial influence.

The fact of voluntariness forms part of the subject matter of proof.

If the victim submits a reconciliation statement under coercion, such a statement cannot serve as a lawful basis for exemption from criminal liability. (Закон и Право)

36. Specific Features of Reconciliation Where There Are Several Victims

Let us assume that the victims are A, B and C.

The accused:

• Compensated A for the damage caused;
• Reconciled with A;
• Reconciled with B;
• But C did not reconcile.

The Supreme Court proceeds from the position that the absence of reconciliation with at least one victim prevents the application of Article 68, provided that such victim is involved in the relevant criminal offence. (Закон и Право)

37. Evidence

The main issues to be established in a case under Article 110 are:

1. Did violence occur?
2. Who committed it?
3. Against whom was it committed?
4. For how long?
5. By what means?
6. What suffering was caused?
7. Was there particular cruelty?
8. Was there humiliation or degrading treatment?
9. What was the purpose?
10. Was harm to health caused?
11. What was the degree of harm?
12. Were there at least two victims?
13. What is the causal relationship between the actions and the consequences?

38. Types of Evidence

The following may be of particular significance:

Victims' Testimony

Where there are several victims, their testimony must be examined individually.

Witness Testimony

In particular:

• Neighbors;
• Relatives;
• Colleagues;
• Employees of medical institutions;
• Teachers;
• Social workers.

Medical Records

• Visits to trauma centers;
• Outpatient medical records;
• Medical histories;
• Specialists' reports;
• Photographs of injuries.

Forensic Medical Examination

This is relevant for establishing the nature of bodily injuries and the degree of harm to health.

Forensic Psychological Examination

This may be relevant for assessing psychological consequences and the victim's mental state.

Photographs and Video Recordings

• Surveillance cameras;
• Mobile phones;
• Dashcams;
• Messages;
• Video recordings.

Electronic Correspondence

• WhatsApp;
• Telegram;
• SMS;
• Social networks;
• Voice messages.

39. Assessment of Evidence

Article 125 of the CPC provides for the assessment of each item of evidence according to the following criteria:

• Relevance;
• Admissibility;
• Reliability.

The totality of evidence is assessed according to the criterion of sufficiency. (Закон и Право)

This means that one medical document, for example, confirming the existence of a bruise, does not necessarily prove:

• The fact of torture;
• The purpose of inflicting suffering;
• Particular cruelty;
• The qualifying element involving two or more victims.

A body of evidence is required to support the accusation.

40. Principle of Completeness of the Investigation

Article 24 of the CPC requires the court, prosecutor, investigator and inquiry officer to conduct a comprehensive, complete and objective examination of the circumstances of the case.

In particular, the following must be examined:

• Circumstances incriminating the accused;
• Circumstances exonerating the accused;
• Circumstances mitigating liability;
• Circumstances aggravating liability.

Statements concerning innocence and a lesser degree of guilt must also be examined. (Закон и Право)

 41. Practical Significance of Article 24 of the Criminal Procedure Code

In a case involving two or more victims, a violation of Article 24 may manifest itself, for example, in the following circumstances:

• only one episode has been investigated;
• the second victim has been formally questioned, but has not been granted victim status;
• medical documentation has not been examined;
• the necessary expert examination has not been ordered;
• CCTV footage has not been examined;
• the victim’s reports to the police have not been verified;
• previous police call-outs have not been examined;
• the duration of the violence has not been established;
• the motive has not been examined;
• the purpose of inflicting suffering has not been established.

Such deficiencies may be relevant when appealing a judicial act.

42. Inadmissible Evidence

Article 112 of the Criminal Procedure Code and the relevant clarifications of the Supreme Court are of particular importance.

If evidence is obtained in violation of the law, it may be declared inadmissible.

Supreme Court Regulatory Resolution No. 7 emphasizes that a violation of the requirements for ensuring the rights of participants in a procedural action may result in the information obtained being declared inadmissible evidence. (Law and Legal Practice)

43. If the Accused Confesses

A confession of guilt does not release the investigative authority from its obligation to verify the charges.

It is necessary to establish:

• the fact that the event occurred;
• the involvement of the accused;
• the existence of the elements of the criminal offence;
• the qualifying elements;
• the number of victims;
• the consequences;
• the purpose;
• the causal link.

A confession is one item of evidence, but it does not replace the entire body of evidence required to prove the case.

44. If the Victims Give Contradictory Testimony

Where there are two or more victims, the following discrepancies may arise:

• discrepancies regarding the timing;
• discrepancies in the description of the actions;
• different assessments of the duration;
• contradictions regarding the number of blows;
• differences in the description of threats.

The court must establish the reasons for these contradictions.

It cannot automatically be assumed that every contradiction means that the testimony is false.

At the same time, a finding of guilt cannot be based on unverified and mutually contradictory testimony without an analysis of its reliability.

45. Expert Examination

In cases involving torture or ill-treatment, expert examinations may cover several areas.

Forensic Medical Examination

Establishes:

• the nature of the injuries;
• the mechanism by which they were caused;
• their date of occurrence;
• the degree of severity of the harm to health.

Forensic Psychological Examination

May examine:

• psychological consequences;
• the characteristics of the experiences endured;
• the emotional state.

Comprehensive Expert Examination

In complex circumstances, a comprehensive approach may be required.

46. Measures of Procedural Compulsion

Article 155 of the Criminal Procedure Code provides for the possibility of applying other measures of procedural compulsion.

These include:

• an undertaking to appear;
• compulsory appearance (bringing by force);
• temporary removal from office;
• seizure of property;
• a prohibition on approaching.

(Law and Legal Practice)

In domestic violence cases, a prohibition on approaching may be of particular importance, since the risk of repeated influence on victims may directly affect the safety of participants in the proceedings.

47. Preventive Measures

Article 136 of the Criminal Procedure Code establishes the general grounds for applying preventive measures:

• the risk of absconding;
• obstructing an objective investigation;
• exerting influence on participants;
• continuing criminal activity;
• ensuring the enforcement of the judgment.

At the same time, the law requires consideration of the possibility of applying a less restrictive measure if it is sufficient. (Law and Legal Practice)

48. Specific Feature of Article 110

Article 136 of the Criminal Procedure Code expressly includes Article 110 of the Criminal Code in the list of criminal offences in respect of which detention may be applied on the grounds of the seriousness of the crime and/or the qualification of the criminal offence. (Law and Legal Practice)

This does not mean that every accused person is automatically subject to detention.

The existence of procedural grounds and compliance with the requirements of necessity and proportionality of the measure are required.

49. Compulsory Appearance (Bringing by Force)

If a person fails to appear without a valid reason, a suspect, accused person, defendant, witness or victim may be subjected to compulsory appearance.

Article 157 of the Criminal Procedure Code contains the relevant rule. (Law and Legal Practice)

In cases involving several victims, this may be relevant if:

• one victim systematically fails to appear;
• a witness evades attendance;
• it is necessary to ensure that a court hearing can take place.

At the same time, the law establishes restrictions, in particular, in respect of certain categories of persons.

50. Monetary Penalty

In cases provided for by the Criminal Procedure Code, the court may impose a monetary penalty.

Article 160 of the Criminal Procedure Code provides for the procedure for considering the issue of a monetary penalty, including in respect of violations committed at the pre-trial stage.

The amount of the monetary penalty may be up to 50 Monthly Calculation Indices (MCI). (Law and Legal Practice)

51. Prohibition on Approaching

In cases involving the torture or ill-treatment of several persons, this measure may be of particular importance.

For example, if the accused:

• is the spouse of the victim;
• lives with the victims;
• is a parent;
• is a relative;
• has access to the place of residence;
• continues to contact the victims.

A prohibition on approaching may be used to prevent:

• repeated violence;
• pressure;
• threats;
• influence on witnesses;
• coercion to change testimony.

52. Civil Claims by Several Victims

Each victim has the right to submit their own claims.

For example:

Victim A:

• moral damages — KZT 5,000,000;
• medical treatment expenses — KZT 350,000;
• legal representative's expenses — KZT 300,000.

Victim B:

• moral damages — KZT 3,000,000;
• medical treatment expenses — KZT 200,000.

Each claim must have an independent evidentiary basis.

53. Joint and Several Liability

If harm is caused by the joint unlawful actions of several persons, civil legislation permits consideration of joint and several or proportionate liability, depending on the circumstances.

The Supreme Court Regulatory Resolution on compensation for moral damages states that moral harm caused by the joint unlawful actions of several persons may be compensated on a joint and several or proportionate basis in accordance with civil legislation. (Law and Legal Practice Mail)

54. Victim Compensation Fund

In addition to a civil claim, the institution of the Victim Compensation Fund must also be taken into account.

The Law of the Republic of Kazakhstan “On the Victim Compensation Fund” provides for a mechanism of state compensation in cases established by law.

The sources of the Fund include, in particular, compulsory payments recovered by the court. (Law and Legal Practice)

The Criminal Procedure Code also provides for victims' right to compensation in cases предусмотренных by law. (Law and Legal Practice Mail)

55. Compulsory Payment

Upon the delivery of a conviction, the institution of a compulsory payment to the Victim Compensation Fund applies.

For a serious crime, the relevant amount is 20 Monthly Calculation Indices (MCI), pursuant to Article 98-2 of the Criminal Code, in the applicable version.

The compulsory payment:

• does not replace a civil claim;
• does not mean that the victim has received full compensation for all actual harm suffered;
• constitutes an independent public-law consequence of a conviction.

The Supreme Court's practice confirms the need to correctly determine a single payment where there is a concurrence of criminal offences. (Law and Legal Practice)

56. Supreme Court Judicial Practice

Supreme Court Regulatory Resolution No. 7 dated 28 December 2009 is of fundamental importance for Article 110.

It directly regulates issues concerning:

• personal liberty;
• human dignity;
• violence;
• torture;
• cruel treatment;
• admissibility of evidence;
• distinction between Article 146 and Article 110;
• handling complaints of torture;
• compensation for harm.

Paragraph 16-1 of the Resolution is particularly important, as it distinguishes between torture and ill-treatment (torment). (Law and Legal Practice)

57. Supreme Court Practice on Reconciliation

Supreme Court Regulatory Resolution No. 4 dated 21 June 2001 is relevant when analysing Article 68 of the Criminal Code.

Several principles follow from it:

1. reconciliation must be voluntary;
2. the harm must actually be remedied;
3. where there are several victims, each of them must be taken into account;
4. failure to reach reconciliation with at least one victim prevents the application of Article 68 in the relevant case;
5. the victim's statement must be made freely;
6. the criminal prosecution authority and the court are obliged to explain the parties' rights;
7. reconciliation is possible at the stages of the proceedings provided for by law.

(Law and Legal Practice)

58. Practice of Courts of First Instance

Publicly available materials show that courts consider Article 110 as an independent criminal offence requiring the establishment of specific circumstances involving systematic or particularly cruel violence.

For example, a report published in 2026 concerning a judgment of a court in Shymkent stated that a woman had been convicted under subparagraphs 1) and 2) of part two of Article 110 for torturing a minor and committing torture against two or more persons. The court sentenced her to 5 years and 3 months of imprisonment. (NUR.KZ)

This example is important specifically in relation to the provision under consideration, since two qualifying elements were applied simultaneously in one case:

• the victims were minors;
• there were two or more victims.

59. Another Example of Judicial Practice

In 2016, the Specialized Interdistrict Criminal Court of Zhambyl Region considered a case in which the charge under part two of Article 110 was related to the torture of two minors. The published report identifies the qualification under subparagraphs 1) and 2) of part two of Article 110. (Kazinform)

This example demonstrates that the qualifying element of committing an offence “against two or more persons” is applied independently of the qualifying element relating to the age of the victims and may be combined with it.

60. Practice Concerning Systematic Violence

The Prosecutor's Office of Kokshetau reported a case in which physical and psychological suffering was inflicted on a common-law wife over a period of seven years through systematic humiliation, beatings and other violent acts; the conduct was classified, among other provisions, under part two of Article 110 of the Criminal Code. (Government Services of Kazakhstan)

This example demonstrates the importance of:

• duration;
• systematic nature;
• repetition;
• a combination of physical and psychological violence.

61. Practice in Domestic Violence Cases

The Prosecutor's Office of Astana, in its review of law enforcement practice, provided examples of convictions for systematic torture, including a case involving many years of violence against a spouse and a case involving cruel treatment of a child. (Government Services of Kazakhstan)

For law enforcement purposes, this demonstrates that, when investigating cases under Article 110, not only specific bodily injuries are important, but also the overall context of the relationship and the recurrence of violence.

62. Appellate Practice

When analysing an appeal under Article 110, the main issues subject to review generally include:

• whether the event has been proven;
• whether guilt has been proven;
• whether the legal classification is correct;
• admissibility of evidence;
• assessment of the victims' testimony;
• existence of the qualifying element;
• individualisation of the punishment;
• civil claim;
• procedural violations.

For the offence under consideration, the following question is particularly important:

Has the commission of the specific offence of torture or ill-treatment against each of the two or more persons been proven?

If the elements of such an offence have not been proven in respect of one of the victims, this may have a direct impact on the classification under subparagraph 2) of part two of Article 110 of the Criminal Code.

63. Possible Grounds for Appeal

The defence may raise the following issues:

1. Failure to prove the existence of a second victim

If the second person was not, in fact, a victim of the criminal offence.

2. Absence of the elements of torture or ill-treatment

If only isolated incidents of the use of force have been established.

3. Absence of the purpose of inflicting suffering

If the evidence confirms a different intent.

4. Absence of particular cruelty or humiliation

If the circumstances correspond to a less serious offence.

5. Incorrect assessment of medical documents

For example, if the injuries do not corroborate the version presented by the victim.

6. Inadmissibility of evidence

If the evidence was obtained through a substantial violation of the Criminal Procedure Code.

7. Violation of Article 24 of the Criminal Procedure Code

If the circumstances were examined in a one-sided manner.

64. Significance of Previous Reports to the Police

In domestic violence cases, the following may have particular evidentiary value:

• previous complaints;
• police call-outs;
• protective orders;
• administrative case materials;
• court rulings;
• reports from neighbours;
• applications to crisis centres.

However, the existence of previous complaints does not, by itself, prove each episode of torture or ill-treatment.

They must be assessed as part of the body of evidence.

65. Psychological Violence

Article 110 expressly provides for:

“physical or mental suffering”.

Therefore, the absence of visible bodily injuries does not automatically mean that the elements of the offence are absent.

However, where the charge is based exclusively on the infliction of mental suffering, it is particularly important to prove:

• specific actions;
• their intensity;
• duration;
• directed nature;
• consequences;
• causal link;
• purpose of inflicting suffering.

66. Infliction of Suffering on Two Persons Through a Single Act of Impact

A situation may arise in which one course of conduct simultaneously affects two persons.

For example:

the accused repeatedly uses violence against two family members over an extended period, accompanied by humiliation and threats.

In such a case, the investigation must establish against whom the specific actions were directed.

If one person is the direct object of physical violence, while the second person merely experiences emotional distress as a result of witnessing it, the classification in respect of the second person requires a separate analysis.

67. A Single Criminal Offence or Several Episodes

The wording “against two or more persons” does not mean that each victim must necessarily be recognised as a separate criminal offence.

A single criminal course of conduct involving several victims is possible.

However, for the purposes of legal classification, it must be proven that suffering was directly inflicted on each person.

Thus:

multiple victims ≠ automatically multiple crimes;

but also:

one episode of violence ≠ automatically proven torture or ill-treatment of everyone who was present.

68. The Issue of Punishment

The sanction under part two of Article 110 provides for:

imprisonment for a term of 4 to 7 years. (Law and Legal Practice)

When imposing punishment, the court takes into account the general rules governing sentencing:

• the nature and degree of public danger;
• the personality of the offender;
• the circumstances of the offence;
• the existence of mitigating circumstances;
• the existence of aggravating circumstances;
• the impact of the punishment on rehabilitation;
• the living conditions of the offender's family;
• other circumstances provided for by the Criminal Code.

69. Mitigating Circumstances

Depending on the specific case, the following may be relevant:

• admission of guilt;
• remorse;
• voluntary compensation for harm;
• the existence of minor children;
• health condition;
• other circumstances provided for in Article 53 of the Criminal Code.

However, the existence of mitigating circumstances does not automatically mean that the minimum sentence will be imposed.

70. Aggravating Circumstances

Where there are grounds, the following may be taken into account:

• recidivism;
• commission of a crime against a vulnerable person;
• particularly prolonged violence;
• other circumstances provided for in Article 54 of the Criminal Code.

At the same time, a circumstance already incorporated by the legislator into the structure of the qualified offence must not be mechanically taken into account a second time as an independent aggravating circumstance.

71. Criminal Record

Since subparagraph 2) of part two of Article 110 provides for imprisonment for up to seven years, the offence is classified as a serious crime.

This has consequences for:

• the category of the crime;
• limitation periods;
• recidivism;
• sentencing;
• conditional early release;
• other criminal law institutions.

72. Limitation Period for Criminal Prosecution

Article 71 of the Criminal Code of the Republic of Kazakhstan establishes a general limitation period of 10 years for a serious crime.

The limitation period begins on the date the criminal offence is committed and continues until the court judgment enters into legal force.

If the person evades the investigation or the court, the running of the limitation period is suspended.

Under certain circumstances, the limitation period may be interrupted. (Law and Legal Practice)

73. The Most Important Distinction Between Article 110 and Torture under Article 146

Article 71 of the Criminal Code expressly provides that limitation periods do not apply to torture.

However, subparagraph 2) of part two of Article 110 concerns torture or ill-treatment (torment), not torture within the meaning of Article 146.

Therefore, where the conduct is independently classified under Article 110, the general limitation regime applicable to a serious crime — 10 years — applies, unless there are special circumstances that change the procedure for calculating the limitation period.

 74. “Limitation period for filing a claim” and “limitation period for criminal prosecution” are different legal institutions

The following must be strictly distinguished:

75. Judicial practice concerning the restoration of the limitation period

The materials published on zakonpravo.kz demonstrate that the issue of restoring the limitation period is not resolved automatically.

In one of the published materials, the applicant requested restoration of the limitation period, referring to circumstances related to the impossibility of obtaining timely judicial protection. The mere fact that such a motion has been filed does not mean that it will be granted — the court examines the specific circumstances. (Закон и Право)

The practical conclusion for a case involving torture is as follows:

if a civil claim is filed within criminal proceedings before the conclusion of the judicial investigation, there is generally no need to rely on the restoration of the limitation period.

76. Regulatory legal acts that must be applied

The main body of legislation applicable to Article 110 includes:

Constitution of the Republic of Kazakhstan

Particular attention should be paid to the provisions concerning:

• human dignity;
• judicial protection;
• applicable law;
• international treaties.

The Constitution establishes that the applicable law includes the Constitution, laws corresponding to it, regulatory resolutions of the Constitutional Court and the Supreme Court, other regulatory legal acts, and international treaty obligations of the Republic of Kazakhstan. (ЗаконПраво Почта)

Criminal Code of the Republic of Kazakhstan

First and foremost:

• Article 11 — categories of criminal offences;
• Article 14 — recidivism;
• Article 15 — age of criminal liability;
• Article 28 — complicity;
• Article 52 — general principles of sentencing;
• Article 53 — mitigating circumstances;
• Article 54 — aggravating circumstances;
• Article 58 — aggregation of criminal offences;
• Article 68 — reconciliation;
• Article 71 — limitation period;
• Article 98-1;
• Article 98-2;
• Article 106;
• Article 107;
• Article 108-1;
• Article 109-1;
• Article 110;
• Article 146.

Criminal Procedure Code of the Republic of Kazakhstan

In particular:

• Article 24 — completeness and objectivity of the investigation;
• Article 25 — assessment of evidence;
• Article 32 — types of criminal prosecution;
• Article 36 — termination of criminal proceedings;
• Article 71 — victim;
• Article 75 and subsequent provisions concerning other participants;
• Article 110 — explanation of rights;
• Article 112 — inadmissibility of evidence;
• Article 125 — assessment of evidence;
• Article 136 — preventive measures;
• Article 155 — other measures of procedural compulsion;
• Article 157 — compulsory appearance;
• Article 160 — monetary penalty;
• Articles 166–172 — civil claims;
• Article 173 — Victims' Compensation Fund;
• Article 306 — jurisdiction of the district court;
• Article 314 — territorial jurisdiction.

77. Law “On Legal Acts”

When working with subordinate regulatory legal acts, the Law of the Republic of Kazakhstan “On Legal Acts” must be taken into account.

It determines:

• the system of legislation;
• types of regulatory legal acts;
• their hierarchy;
• rules for resolving legal conflicts;
• the effect of regulatory legal acts;
• the status of regulatory resolutions of the Supreme Court.

The Law contains specific provisions:

• Article 4 — system of legislation;
• Article 5 — regulatory resolutions of the Constitutional Court and the Supreme Court;
• Article 6 — international treaties;
• Article 7 — principal and derivative types of regulatory legal acts;
• Article 10 — hierarchy of regulatory legal acts;
• Article 11 — direct effect;
• Article 12 — resolution of contradictions. (Закон и Право)

78. Hierarchy of applicable legal acts

In practical terms:

Constitution of the Republic of Kazakhstan

↓

Ratified international treaties

↓

Criminal Code and Criminal Procedure Code

↓

Other laws

↓

Regulatory resolutions of the Supreme Court

↓

Subordinate regulatory legal acts adopted within the limits of their competence

In the event of a conflict, an act of a lower legal rank cannot alter the substance of a provision contained in an act of a higher legal rank.

The Law “On Legal Acts” specifically establishes the principle of the hierarchy of regulatory legal acts. (Закон и Право)

79. Regulatory Resolution No. 7 of the Supreme Court of the Republic of Kazakhstan dated 28 December 2009

For the purposes of the Article under consideration, this is one of the principal legal acts.

Particular attention should be paid to the following:

Paragraph 15-2

Every instance of cruel or degrading treatment must receive a legal assessment.

Paragraph 16

Provides explanations concerning certain issues relating to the distinction between the relevant criminal offences.

Paragraph 16-1

Directly distinguishes torture under Article 146 of the Criminal Code from torment.

(Закон и Право)

80. Regulatory Resolution on the Judicial Judgment

Regulatory Resolution No. 4 of the Supreme Court of the Republic of Kazakhstan dated 20 April 2018, “On the Judicial Judgment”, is relevant to:

• the content of a judgment;
• assessment of evidence;
• reasoning behind the legal classification;
• sentencing;
• determination of civil claims;
• termination of proceedings;
• exemption from criminal liability.

The Supreme Court explains that a judgment must contain a legal assessment of the act and reasons supporting the court's conclusions. (Закон и Право)

81. How a judgment under subparagraph 2) of paragraph 2 of Article 110 must be reasoned

The reasoning section of the judgment must establish the following:

In respect of the first victim:

• what actions were committed;
• when they were committed;
• by what means;
• what suffering was inflicted;
• why such actions constitute torment.

In respect of the second victim:

The same circumstances must be established.

After that, the court must explain:

why the totality of the established circumstances makes it possible to apply precisely subparagraph 2) of paragraph 2 of Article 110.

It is insufficient merely to repeat the wording of the law:

“committed torment against two or more persons”.

82. Example of a proper legal formulation of the charge

For example:

“During the period from ... to ..., the accused, acting intentionally and with the purpose of causing physical and mental suffering to the victims, systematically committed violent acts against A. and B., which consisted of ..., were accompanied by ..., and resulted in A. and B. experiencing physical and mental suffering. The nature, duration and manner of the actions indicate particular cruelty and humiliation. At the same time, no grievous or moderate bodily harm was caused to the victims.”

Such a formulation must be supported by evidence in respect of each element.

83. What is particularly important for the defence

The defence should verify the following:

1. How many victims have actually been recognised?

It is not sufficient for two persons to be mentioned in the statement.

2. Is there a formal decision recognising each person as a victim?

3. Has the infliction of suffering on each victim been proven?

4. Has the purpose been proven?

5. Has particular cruelty been proven?

6. Does the act fall under Article 109-1 instead?

7. Does the act fall under Article 108-1 or Article 107 instead?

8. Are there any elements of Article 146?

9. Was moderate or grievous bodily harm caused?

10. Were any violations committed when obtaining the evidence?

84. What is particularly important for the victims' side

The victims' side should ensure the availability of:

• recognition of each person as a victim;
• medical records;
• documentation of injuries;
• psychological examination;
• photographs and video recordings;
• electronic correspondence;
• call recordings, within the limits of lawful acquisition;
• information concerning previous complaints;
• information concerning protection orders;
• witness statements;
• documents confirming expenses;
• civil claims submitted by each victim.

85. If the accused exerts pressure on the victims after the commencement of criminal proceedings

This may have a dual significance:

1. as a circumstance relevant to the assessment of the accused's conduct;
2. as grounds for applying procedural protection and preventive measures.

Where there is a risk of pressure, the following measures may be considered:

• prohibition on approaching the victims;
• security measures;
• preventive measures;
• other measures provided for by the Criminal Procedure Code.

86. Protection of witnesses and victims

A victim has the right to request the application of security measures.

Article 71 of the Criminal Procedure Code expressly provides for the possibility of requesting security measures for the victim and members of their family, as well as the imposition of a prohibition on approaching them. (Закон и Право)

This mechanism is particularly important in cases involving two or more victims, since one victim may be dependent on the accused, while another may be able to provide independent testimony.

87. Situation where one victim refuses to testify

The refusal of one victim to testify:

• does not automatically terminate public criminal prosecution;
• does not deprive the State of the right to continue the investigation;
• does not automatically mean that the criminal offence has not been proven.

However, the evidentiary basis must be assessed taking this change of position into account.

It is particularly important to establish the reasons for the refusal:

• voluntariness;
• fear;
• dependency;
• pressure;
• reconciliation;
• financial dependency;
• a change of position without explanation.

88. Evidentiary significance of reconciliation

Reconciliation itself does not necessarily mean that the accused has admitted guilt.

However, if a party relies on Article 68, it is necessary to establish whether the conditions prescribed by law have been met.

The Supreme Court emphasises that reparation of harm must be real and must take place before the decision to release the person from criminal liability is made. (Закон и Право)

89. If there are several victims but compensation has been paid to only one

This circumstance does not mean that the harm has been fully remedied.

For example:

A. received 1 million tenge.

B. received nothing.

If both are victims under the same criminal offence, the condition concerning reparation of harm in respect of B. remains unresolved.

Consequently, when considering the application of Article 68, the situation of each victim must be assessed.

90. Judicial practice and proof of systematic conduct

Although the word “systematically” is not included in the current wording of paragraph 1 of Article 110 as the sole mandatory element, judicial practice in cases involving torment often uses systematic conduct as an important factual indicator of the nature of the violence.

However, the defence must distinguish between:

systematic conduct as an evidentiary indicator of the seriousness of the behaviour

and

a formal requirement that the court must mechanically establish in every case.

The main issue is the presence of all elements of the criminal offence prescribed by the current wording of Article 110.

91. Practical table for distinguishing criminal offences

92. International standards of proof

International norms reinforce the following requirements:

• effective investigation;
• protection against torture;
• protection of human dignity;
• access to the right to lodge a complaint;
• compensation;
• inadmissibility of evidence obtained through torture.

In particular, Article 15 of the Convention against Torture requires the exclusion of statements established to have been obtained through torture, except where such statements are used against a person accused of torture. (ЗаконПраво Почта)

93. Supreme Court's legal position concerning unlawful treatment

The Supreme Court emphasises that, where unlawful actions degrading the dignity of a participant in proceedings are established, the court must take procedural action.

In certain cases, the court issues a separate ruling for the purpose of taking prosecutorial response measures. (Закон и Право)

94. Court of first instance: procedure for examining the case

Upon receipt of the case, the court must verify the following:

Stage 1

Whether the case falls within the jurisdiction of that court.

Stage 2

Whether the act has been correctly classified.

Stage 3

How many victims there are.

Stage 4

Whether all victims have been formally recognised.

Stage 5

Whether a civil claim has been filed.

Stage 6

Whether the evidence is admissible.

Stage 7

Whether there are grounds for changing the preventive measure.

Stage 8

Whether the evidence concerning each victim has been examined.

Stage 9

Whether the subjective element of the criminal offence has been proven.

Stage 10

Whether the qualifying element of “two or more persons” has been proven.

95. Court of appeal: main points for review

In a case under Article 110, the appellate court may review:

• the completeness of the judicial proceedings;
• the correctness of the assessment of evidence;
• whether the court's conclusions correspond to the evidence;
• the legal classification;
• the sentence;
• the civil claim;
• procedural violations.

The following issue is of particular importance:

Did the court establish specific circumstances confirming the commission of torment against each of the victims?

96. Supreme Court: significance for judicial practice

At the cassation level, the following are particularly important:

• consistency in the legal classification;
• correct application of the provisions of the Criminal Code;
• substantial violations of the Criminal Procedure Code;
• inadmissibility of evidence;
• proper determination of the civil claim;
• correct application of Article 68;
• proper distinction between Articles 110 and 146 of the Criminal Code.

97. Practical checklist for a lawyer

Regarding legal classification

□ two victims have been established;

□ each person is a direct victim;

□ acts of violence have been established;

□ physical/mental suffering has been established;

□ particular cruelty or humiliation has been established;

□ the purpose of causing torment has been established;

□ no moderate/grievous bodily harm has been caused, or the issue of the aggregate of criminal offences has been properly resolved;

□ the applicability of Article 146 has been excluded;

□ the qualifying element provided for in subparagraph 2) of paragraph 2 of Article 110 has been proven.

98. Evidence

□ medical records;

□ forensic medical examination (FME);

□ psychological assessment;

□ photographs;

□ video recordings;

□ correspondence;

□ telephone calls;

□ witnesses;

□ previous complaints and reports;

□ protective orders;

□ administrative case materials;

□ records of investigative actions;

□ verification of the admissibility of each item of evidence.

99. Victims

□ each person has been formally recognized as a victim;

□ their rights have been explained;

□ legal representation has been provided;

□ their safety has been ensured;

□ a civil claim has been filed;

□ moral damage has been substantiated;

□ property-related expenses have been substantiated;

□ the voluntary nature of each victim's position has been verified.

100. Civil Claim

□ the claim was filed before the conclusion of the judicial investigation;

□ no state duty is payable;

□ moral damage has been calculated separately;

□ pecuniary damage has been calculated separately;

□ medical expenses have been attached;

□ legal representative's fees have been included;

□ documents confirming income/incapacity for work have been provided, where necessary;

□ the causal link has been specified.

101. Under Article 68 of the Criminal Code

□ the category of the criminal offence has been correctly determined;

□ the accused falls within the category предусмотрed by law;

□ the criminal offence was committed for the first time;

□ there is no prohibition under Part 4 of Article 68;

□ reconciliation has been achieved with all necessary victims;

□ the harm caused has actually been remedied;

□ the victims' expressions of will are voluntary;

□ the relevant applications are available;

□ the issue has been considered by the court of first instance or the appellate court at a procedurally permissible stage.

102. Procedural Compulsion Measures

□ the necessity of detention has been substantiated;

□ the possibility of applying a less restrictive preventive measure has been examined;

□ a prohibition on approaching the victims has been considered;

□ the safety of the victims has been ensured;

□ the possibility of exerting pressure on the victims has been excluded;

□ the rules governing compulsory appearance have been observed;

□ the rules governing monetary penalties have been observed.

103. Final Legal Framework

Subparagraph 2) of Part 2 of Article 110 of the Criminal Code of the Republic of Kazakhstan constitutes an aggravated form of torture (systematic infliction of physical or mental suffering), the mandatory additional element of which is the commission of the relevant act against two or more persons.

The principal practical mistake is to consider this element in isolation.

The correct legal sequence should be as follows:

1. Establish the violent acts.

↓

2. Establish physical or mental suffering.

↓

3. Establish particular cruelty and/or humiliation.

↓

4. Establish the purpose of inflicting torment.

↓

5. Verify the absence of consequences in the form of serious or moderate bodily harm, or resolve the issue of the concurrence of criminal offences.

↓

6. Identify the first direct victim.

↓

7. Identify the second direct victim.

↓

8. Prove the elements of torture individually in respect of each victim.

↓

9. Examine the distinction from Articles 106, 107, 108-1, 109-1 and 146 of the Criminal Code.

↓

10. Only thereafter apply subparagraph 2) of Part 2 of Article 110.

104. Key Practical Conclusions

First conclusion

Subparagraph 2) of Part 2 of Article 110 is not an independent alternative to Part 1, but an aggravated form of the basic offence of torture.

Second conclusion

For the application of the element "against two or more persons", at least two direct victims must be established.

Third conclusion

A person's mere presence during violence committed against another person does not, in itself, make that person a victim under subparagraph 2) of Part 2 of Article 110.

Fourth conclusion

Part 2 of Article 110 falls within the category of public prosecution. This fundamentally distinguishes it from Part 1 of Article 110, which falls within the category of private-public prosecution. (Law and Justice)

Fifth conclusion

A civil claim in criminal proceedings may be filed from the commencement of pre-trial investigation until the conclusion of the judicial investigation, and the claimant is exempt from payment of the state duty. (Law and Justice)

Sixth conclusion

A claim for compensation for moral damage is subject to a special limitation regime — as a general rule, the statute of limitations does not apply to such claims. (Law and Justice)

Seventh conclusion

The limitation period for criminal prosecution under subparagraph 2) of Part 2 of Article 110, as a serious criminal offence, is generally ten years, unless special rules apply. At the same time, the absence of a limitation period for torture under Article 71 of the Criminal Code applies to Article 146 and does not automatically extend to Article 110. (Law and Justice)

Eighth conclusion

Where there are several victims, the application of Article 68 of the Criminal Code requires consideration of the position of each victim; the Supreme Court specifically indicates that the absence of reconciliation with even one victim prevents exemption from criminal liability under Article 68 in the relevant circumstances. (Law and Justice)

Ninth conclusion

Article 110 must be strictly distinguished from Article 146 of the Criminal Code. Where the elements of torture are present, the special provision of Article 146 applies. (Law and Justice)

Tenth conclusion

In cases involving two or more victims, the key evidentiary issue is not merely the number of victims, but whether all elements of the offence of torture have been proven in respect of each of them.

105. Principal Sources for Practical Application

1. Article 110 of the Criminal Code of the Republic of Kazakhstan — Torture — current version, including subparagraph 2) of Part 2. (Law and Justice)

2. Article 11 of the Criminal Code of the Republic of Kazakhstan — Categories of Criminal Offences — determines the category of a serious criminal offence. (Law and Justice)

3. Article 68 of the Criminal Code of the Republic of Kazakhstan — Exemption from Criminal Liability in Connection with Reconciliation. (Law and Justice)

4. Article 71 of the Criminal Code of the Republic of Kazakhstan — Exemption from Criminal Liability Due to the Expiry of the Limitation Period. (Law and Justice)

5. Article 32 of the Criminal Procedure Code of the Republic of Kazakhstan — Cases of Private, Private-Public and Public Prosecution. (Law and Justice)

6. Article 71 of the Criminal Procedure Code of the Republic of Kazakhstan — Victim. (Law and Justice)

7. Article 167 of the Criminal Procedure Code of the Republic of Kazakhstan — Filing a Civil Claim. (Law and Justice)

8. Article 166 of the Criminal Procedure Code of the Republic of Kazakhstan — Civil Claims Considered in Criminal Proceedings. (Law and Justice)

9. Article 306 of the Criminal Procedure Code of the Republic of Kazakhstan — Criminal Cases Within the Jurisdiction of a District Court or an Equivalent Court. (Law and Justice)

10. Article 314 of the Criminal Procedure Code of the Republic of Kazakhstan — Territorial Jurisdiction of Criminal Cases. (Law and Justice)

11. Article 24 of the Criminal Procedure Code of the Republic of Kazakhstan — Comprehensive, Full and Objective Examination of the Circumstances of the Case. (Law and Justice)

12. Article 125 of the Criminal Procedure Code of the Republic of Kazakhstan — Assessment of Evidence. (Law and Justice)

13. Article 136 of the Criminal Procedure Code of the Republic of Kazakhstan — Grounds for Applying Preventive Measures. (Law and Justice)

14. Article 155 of the Criminal Procedure Code of the Republic of Kazakhstan — Grounds for Applying Other Procedural Compulsion Measures. (Law and Justice)

15. Regulatory Resolution No. 7 of the Supreme Court of the Republic of Kazakhstan dated 28 December 2009 on the Application of Criminal and Criminal Procedure Legislation Concerning the Observance of Personal Liberty and Human Dignity, and Combating Torture, Violence and Other Cruel or Degrading Treatment or Punishment. (Law and Justice)

16. Regulatory Resolution No. 4 of the Supreme Court of the Republic of Kazakhstan dated 20 April 2018 "On the Court Judgment". (Law and Justice)

17. Regulatory Resolution No. 4 of the Supreme Court of the Republic of Kazakhstan dated 21 June 2001 on Judicial Practice in Applying Article 68 of the Criminal Code of the Republic of Kazakhstan. (Law and Justice)

18. Regulatory Resolution No. 7 of the Supreme Court of the Republic of Kazakhstan dated 27 November 2015 on the Application by Courts of Legislation on Compensation for Moral Damage. (Law and Justice)

19. Law of the Republic of Kazakhstan "On Legal Acts". (Law and Justice)

20. United Nations Convention against Torture. (Law and Justice Mail)

Conclusion

Subparagraph 2) of Part 2 of Article 110 of the Criminal Code of the Republic of Kazakhstan should be regarded as an aggravated form of torture, in which the qualifying circumstance is that the criminal conduct is directed against two or more direct victims.

In practice, the central issue is not the mere number of persons involved in the conflict, but whether the complete elements of the offence of torture have been proven in respect of each victim.

The most significant legal aspects of the case are:

qualification → two or more direct victims → proof of the suffering of each victim → particular cruelty/humiliation → purpose of inflicting torment → distinction from Articles 106, 107, 108-1, 109-1 and 146 of the Criminal Code → admissibility of evidence → procedural protective measures → civil claim → moral damage → Article 68 of the Criminal Code → sentencing → appellate and cassation review.

It is particularly important that Part 2 of Article 110 falls within the category of public prosecution; therefore, the wishes of one victim do not determine the fate of the criminal prosecution in the same way as in cases of private prosecution. (Law and Justice)

At the same time, the civil-law protection of victims retains its independent significance: a civil claim may be filed directly within criminal proceedings before the conclusion of the judicial investigation, without payment of the state duty, while a claim for compensation for moral damage is subject to a special limitation regime. (Law and Justice)

From a procedural perspective, the cases most vulnerable to judicial scrutiny are those in which the prosecution formally groups several victims together, whereas the evidence actually confirms the elements of torture in respect of only one of them. In such a situation, establishing the second victim and proving all the elements of the offence in respect of that person becomes the central issue in determining the correctness of the legal qualification under subparagraph 2) of Part 2 of Article 110 of the Criminal Code of the Republic of Kazakhstan.

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