Torture Motivated by Social, National, Racial or Religious Hatred or Hostility

1. Regulatory Basis of the Offence

The current version of Article 110 of the Criminal Code of the Republic of Kazakhstan provides for liability for torture.

Part one establishes liability for causing physical or mental suffering through violent acts committed with particular cruelty or abuse, with the purpose of causing suffering to the victim, provided that no serious or moderately serious harm to health is caused.

Part two qualifies the same act where the qualifying circumstances provided by law are present. Paragraph 6 specifies the commission of the act “motivated by social, national, racial, or religious hatred or hostility.” The sanction is imprisonment for a term of four to seven years. (Zakon i Pravo)

Article 110 of the Criminal Code of the Republic of Kazakhstan on zakonpravo.kz

Thus, the legal construction consists of two levels:

1. it is necessary to prove the basic elements of torture;
2. additionally, it is necessary to prove the special motive — social, national, racial or religious hatred or hostility.

This is fundamentally important.

The mere fact that the victim belongs to a particular nationality, social group, or professes a particular religion does not prove a motive of hatred or hostility.

It is necessary to establish a causal and subjective connection between the relevant characteristic of the victim and the perpetrator’s decision to commit torture.

2. Place of Paragraph 6 of Part 2 of Article 110 of the Criminal Code in the System of Criminal Legislation

Article 110 is contained in the chapter of the Criminal Code of the Republic of Kazakhstan concerning crimes against human life and health.

The main distinction between the offence in question and ordinary infliction of physical pain lies in the presence of torture, i.e. not merely violence, but violent conduct accompanied by torment and suffering.

The Supreme Court has specifically clarified the elements of Article 110 of the Criminal Code.

According to paragraph 31-2 of Regulatory Resolution No. 1 of the Supreme Court of the Republic of Kazakhstan dated 11 May 2007, the mandatory elements of the offence under Article 110 of the Criminal Code are:

• intentional violent acts;
• particular cruelty or abuse;
• causing physical and mental suffering to the victim;
• the purpose of causing suffering to the victim. (Adilet)

Torture may be expressed in prolonged or repeated acts: systematic beating, causing minor harm to health, striking with various objects, biting, pulling out hair, setting animals upon the victim, depriving the victim of food, water, warmth, and other similar acts. (Adilet)

Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan on the Qualification of Crimes against Life and Health

3. Object of the Offence

The immediate objects are:

• human life and health;
• physical integrity;
• mental well-being;
• human dignity.

When qualifying an act under paragraph 6 of part 2 of Article 110, an additional protected interest arises — human equality and the inadmissibility of discriminatory violence.

That is why the legislator identifies the motive of hatred or hostility as a qualifying element.

In fact, criminal-law protection here has a dual focus:

individual protection of the victim + protection of the principle of non-discrimination.

This is particularly important when distinguishing between:

• a domestic conflict;
• personal animosity;
• a hooligan motive;
• revenge;
• a pecuniary motive;
• a discriminatory motive.

4. Objective Element

The objective element consists of:

causing physical or mental suffering through violent acts committed with particular cruelty or abuse, with the purpose of causing suffering to the victim.

At the same time, the legislator specifically establishes a limitation:

an act under part 1 of Article 110 must not result in serious or moderately serious harm to health.

If the acts result in the relevant harm, it is necessary to examine the possibility of qualification under other articles of the Criminal Code or under the cumulative liability for criminal offences.

5. Torture Is Not Any Infliction of Pain

This is one of the central issues of judicial qualification.

For Article 110, it is insufficient to establish:

• one strike;
• one push;
• a single slap;
• a single infliction of pain.

The mere existence of bodily injury also does not automatically constitute torture.

The court must establish a combination of circumstances:

1. the nature of the violence;
2. its intensity;
3. its duration;
4. repetition;
5. the method of commission;
6. the circumstances;
7. the perpetrator’s attitude toward the victim’s suffering;
8. the purpose of causing suffering;
9. the presence of particular cruelty or abuse.

The Supreme Court expressly indicates that prolonged and repeated acts may constitute a form of torture. (Adilet)

6. Subjective Element

The offence is characterized by an intentional form of guilt.

However, for the purposes of the paragraph 6 in question, it is necessary to establish not only the intent to commit violent acts.

It is necessary to establish the special motive:

social, national, racial or religious hatred or hostility.

Thus, the subjective element contains at least two components:

6.1. Intent to Commit Violence

The person is aware of the nature of the acts being committed and desires to cause physical or mental suffering.

6.2. Special Motive

The person acts because of a negative attitude toward the victim:

• because of the victim’s nationality;
• race;
• religion;
• social origin or membership in a social group.

7. What Does “Motive of Hatred or Hostility” Mean

A motive is the internal impetus that guides a person in committing an offence.

In the present case, it is necessary to establish that the relevant characteristic of the victim was a material factor in the commission of the violence.

For example:

Situation No. 1

Two people have a dispute over a debt.

One of them beats the other, who is of a different nationality.

If there is no evidence in the case file that the victim’s nationality was the cause of the violence, qualification under paragraph 6 of part 2 of Article 110 does not automatically follow.

Situation No. 2

The perpetrator systematically beats the victim while simultaneously using humiliating expressions directly related to the victim’s nationality and states that he is beating the victim precisely because the victim belongs to a particular national group.

Here, the evidentiary significance of the motive is considerably greater.

Situation No. 3

The perpetrator causes suffering to a member of a particular religious group, making statements about the need to “punish” the victim for belonging to that religion.

Such circumstances are directly relevant to establishing the special motive.

8. Distinguishing the Motive of Hatred from Personal Animosity

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

The investigation should not substitute proof of a motive of hatred with a simple statement that:

“there was a conflict between the parties.”

If the conflict arose:

• because of monetary obligations;
• out of jealousy;
• due to family relations;
• because of the division of property;
• due to an employment dispute;
• because of personal resentment;
• out of revenge,

it is necessary to separately prove that the victim’s national, religious or social affiliation was an independent motivating circumstance.

Otherwise, there is a risk of incorrect legal qualification.

9. Distinguishing It from a Hooligan Motive

A hooligan motive is primarily directed at demonstrating disregard for public order.

A motive of hatred has a different direction.

For example:

a person beats a random passer-by solely because he wants to demonstrate contempt for public order.

This, in itself, does not mean national or religious hatred.

Conversely:

a person selects the victim specifically because of the victim’s national or religious affiliation.

This circumstance requires separate legal assessment.

10. Nationality of the Victim

The following may be relevant to proving a national motive:

• statements made by the accused;
• correspondence;
• audio recordings;
• video recordings;
• publications;
• social media posts;
• witness testimony;
• previous conflicts;
• statements made before, during and after the offence;
• searching for the victim specifically based on the relevant characteristic;
• use of offensive national designations;
• statements concerning the victim’s belonging to a particular group.

At the same time, the presence of an offensive word alone should not automatically be regarded as sufficient evidence of the motive.

The court assesses the evidence in its entirety.

Preserve the Russian legal structure more literallyCorrect awkward legal English phrasing 

 11. Religious Hatred

A similar approach applies to a religious motive.

For example, the following may be relevant:

• statements concerning religious beliefs;
• demands to renounce one’s religion;
• violence resulting from religious affiliation;
• insulting a religious group;
• messages and correspondence;
• publications;
• eyewitness testimony.

However, it is necessary to distinguish between:

a religious conflict

and

violence motivated by religious hatred.

These are not the same thing.

12. Social Hatred

The wording “social hatred or hostility” requires a particularly cautious approach.

It may concern a person’s membership in a particular social group.

However, a mere difference in:

• property status;
• position;
• profession;
• social status

does not, in itself, mean that there is a motive of social hatred.

The investigation must prove that it was specifically the victim’s membership in a particular social group that caused the torture to be committed.

13. Structure of the Charge

The indictment or other procedural document must specify:

1. what specific acts were committed;
2. when;
3. where;
4. by what means;
5. how long the conduct lasted;
6. what suffering was caused;
7. why the acts constitute torture specifically;
8. what constituted the particular cruelty or abuse;
9. what the purpose of causing suffering was;
10. what specific motive of hatred or hostility was established;
11. what evidence confirms this motive.

The wording:

“the accused committed torture motivated by national hatred”

is, in itself, insufficient.

The factual substance of the motive must be disclosed.

14. Qualification Based on a Combination of Criminal Offences

The distinction between Article 110 and other offences is of particular importance.

If the violence resulted in:

• serious harm to health;
• moderately serious harm to health;
• death;
• sexual violence;
• unlawful deprivation of liberty;
• torture in the specific criminal-law sense,

the issue of qualification under other articles of the Criminal Code may arise.

15. Distinguishing It from Torture under Article 146 of the Criminal Code

This is a fundamentally important issue.

The Supreme Court has specifically clarified the need to distinguish Article 146 of the Criminal Code from paragraph 4 of part 2 of Article 110 of the Criminal Code in the relevant version. If all the elements of the offence of torture under Article 146 are present, the act is covered by the special provision on torture, and additional qualification under the relevant paragraph of Article 110 is not required. (Zakon i Pravo)

Regulatory Resolution No. 7 of the Supreme Court of the Republic of Kazakhstan on Countering Torture

In 2023, the Supreme Court additionally updated its clarifications concerning the distinction between torture, cruel treatment and abuse of authority. (Zakon i Pravo)

Amendments to the Regulatory Resolutions of the Supreme Court of the Republic of Kazakhstan dated 28 September 2023 No. 1

The key criterion is the special subject and special purpose of torture provided for by Article 146 of the Criminal Code.

16. International Legal Significance

Kazakhstan is a State Party to the UN Convention against Torture.

Article 1 of the Convention defines torture through the intentional infliction of severe pain or suffering for certain purposes, including intimidation, coercion, punishment, and reasons based on discrimination, where the relevant acts are committed by a public official or by a person acting at the instigation of, with the consent of, or with the acquiescence of a public official. (Zakon i Pravo)

Article 2 requires effective legislative, administrative and judicial measures to be taken to prevent torture. (Zakon i Pravo)

Article 12 requires a prompt and impartial investigation where there are reasonable grounds to believe that torture has been committed. Article 13 provides for the right to lodge a complaint and for the protection of the complainant and witnesses. Article 14 provides for redress and fair and adequate compensation for victims of torture. (Zakon i Pravo)

UN Convention against Torture on zakonpravo.kz

17. International Covenant on Civil and Political Rights

For the category of cases under consideration, the following provisions are of particular importance:

• Article 2 — the obligation to ensure rights without discrimination;
• Article 7 — prohibition of torture and cruel, inhuman or degrading treatment;
• Article 14 — guarantees of a fair trial;
• Article 20(2) — prohibition of advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence;
• Article 26 — equality before the law and effective protection against discrimination.

Kazakhstan has ratified the International Covenant on Civil and Political Rights. (Adilet)

International Covenant on Civil and Political Rights on zakonpravo.kz

18. International Convention on the Elimination of Racial Discrimination

For cases where racial or national hatred constitutes the motive, the International Convention on the Elimination of All Forms of Racial Discrimination is relevant.

The following are particularly important:

• the State’s obligation to ensure protection against racial discrimination;
• effective judicial remedies;
• investigation of discriminatory acts;
• equality before the law.

Kazakhstan has also recognized the competence of the Committee on the Elimination of Racial Discrimination with respect to individual communications under Article 14 of the Convention. (ZakonPravo Poсhta)

19. Investigative Jurisdiction

A criminal case under Article 110 of the Criminal Code is investigated within the framework of pre-trial investigation.

If a statement contains information indicating signs of a criminal offence, the commencement of the pre-trial investigation is effected by registering the statement/report in the Unified Register of Pre-Trial Investigations (ERDR), or by conducting the first urgent investigative action in cases provided for by law. This follows from Article 179 of the Criminal Procedure Code of the Republic of Kazakhstan. (Zakon i Pravo)

Article 179 of the Criminal Procedure Code of the Republic of Kazakhstan on zakonpravo.kz

If the issue of transferring the material according to investigative jurisdiction arises, Article 186 of the Criminal Procedure Code applies. (Zakon i Pravo)

Article 186 of the Criminal Procedure Code of the Republic of Kazakhstan

20. Jurisdiction

As a general rule, criminal cases are heard by district and equivalent courts unless the Criminal Procedure Code assigns them to specialized jurisdiction.

Article 306 of the Criminal Procedure Code expressly provides that district and equivalent courts act as courts of first instance and hear all criminal cases, except those assigned to specialized courts. (Zakon i Pravo)

Article 306 of the Criminal Procedure Code of the Republic of Kazakhstan — jurisdiction of district courts

Therefore, an ordinary criminal case under paragraph 6 of part 2 of Article 110 of the Criminal Code, in the absence of special circumstances, is heard by a district or equivalent court of first instance.

If the accused is a minor, the rules of special jurisdiction applicable to cases involving minors must be examined separately.

Polish the legal English for precisionClarify the Article 110 qualification analysis

 Конечно. Ниже — перевод на английский с сохранением структуры, нумерации и юридической терминологии.

21. Territorial Jurisdiction

The principal criterion is the place where the criminal offence was committed.

If the crime was committed in one district, the investigation and subsequent judicial proceedings are, as a rule, tied to the respective territory.

Where it is impossible or necessary to conduct the investigation in another territory, the provisions of the CPC concerning the transfer of cases according to investigative jurisdiction and jurisdiction shall apply.

22. “Jurisdiction” — Correct Terminology

For a legal opinion, I recommend using:

“Subject-matter and territorial jurisdiction of the criminal case”

rather than:

“jurisdiction of the case under Article 110 of the Criminal Code.”

The term “jurisdiction” in the sense of vedomstvennaya podvedomstvennost is primarily used when distinguishing the competence of different types of judicial proceedings and bodies.

In criminal proceedings, it is more accurate to use:

• investigative jurisdiction;
• jurisdiction;
• competence of the criminal prosecution authority;
• competence of the investigating judge.

23. State Duty

No state duty is payable in the criminal case itself for criminal prosecution initiated by the victim.

The victim does not file a claim seeking to have a person prosecuted.

Criminal prosecution is carried out by the State.

At the same time, the victim has the right to file a civil claim within the criminal proceedings.

24. Civil Claim within the Criminal Case

Article 166 of the CPC provides for the consideration of civil claims within criminal proceedings:

• for compensation for property damage;
• for compensation for moral damage;
• for medical treatment expenses;
• for funeral expenses;
• for other expenses provided for by law;
• for expenses related to participation in criminal proceedings, including representation. (Zakon i Pravo)

Article 166 of the CPC of the Republic of Kazakhstan — Civil Claims in Criminal Proceedings

This is significant for a case under Article 110.

The victim may simultaneously claim:

compensation for moral damage + property damage + medical treatment expenses + representative’s expenses.

25. State Duty on a Civil Claim in a Criminal Case

When a civil claim is filed directly within criminal proceedings, the victim is exempt from the requirement to pay a state duty as would be required for an independent civil claim.

This is also reflected in a practical sample of a civil claim published on zakonpravo.kz, which expressly states that the claimant is exempt from payment of the state duty when filing a civil claim in a criminal case. (Zakon i Pravo)

If, after the criminal proceedings have ended, the person files an independent civil claim, the issue of the state duty is then resolved under the rules of the CPC and the Tax Code.

26. Pre-Trial Procedure

There is no mandatory civil-law pre-trial claims procedure for qualification under Article 110.

The correct procedure is:

1. filing an application with the criminal prosecution authority;
2. registration of the application;
3. commencement of the pre-trial investigation;
4. recognition of the person as a victim;
5. collection of evidence;
6. notification of suspicion;
7. completion of the investigation;
8. submission of the case to the prosecutor;
9. submission of the case to the court.

Article 179 of the CPC provides for the commencement of a pre-trial investigation through registration of the report in the Unified Register of Pre-Trial Investigations (ERDR) or through the commission of the first urgent investigative action in cases provided for by law. (Zakon i Pravo)

27. Reconciliation Procedures

Here, a very important distinction must be made.

At first glance, the sanction under paragraph 6 of part 2 of Article 110 — from 4 to 7 years — means that it is a serious crime, since an intentional crime punishable by imprisonment for up to 12 years is classified as a serious crime under Article 11 of the Criminal Code. (Adilet)

Article 11 of the Criminal Code of the Republic of Kazakhstan — Categories of Crimes

The general framework of Article 68 of the Criminal Code applies to misdemeanors and crimes of minor or moderate severity and, with respect to certain persons, also to certain serious crimes.

However, there is an additional prohibition.

28. Why Reconciliation under Paragraph 6 of Part 2 of Article 110 Is Effectively Excluded

Part 4 of Article 68 of the Criminal Code expressly provides that the reconciliation provision does not apply to persons who have committed torture. (Zakon i Pravo)

Article 68 of the Criminal Code of the Republic of Kazakhstan — Reconciliation

Therefore, it is necessary to distinguish between:

Option A

The act is qualified specifically under Article 146 of the Criminal Code as torture.

→ Article 68 does not apply.

Option B

The act is qualified under paragraph 6 of part 2 of Article 110 of the Criminal Code as torture motivated by hatred/hostility.

The mere reference to paragraph 6 of part 2 of Article 110 does not automatically transform it into an offence under Article 146 of the Criminal Code.

Accordingly, the issue of Article 68 must be resolved based on the precise legal qualification and all circumstances of the case, rather than on the colloquial use of the word “torture.”

At the same time, since paragraph 6 of part 2 of Article 110 provides for a serious crime, the general mechanism under part 1 of Article 68 does not directly apply to it.

29. Mediation

Mediation may be used in criminal proceedings within the limits provided by law.

However, a mediation agreement:

does not automatically mean that the criminal case will be terminated.

If the law does not permit exemption from criminal liability under Article 68, an agreement between the parties does not eliminate public criminal prosecution.

This is particularly important for the victim’s lawyer and the defense.

30. Evidence

Article 122 of the CPC provides for the collection of evidence through procedural actions.

The defense counsel and the victim’s representative also have the right to independently obtain documents, initiate expert examinations, engage specialists, and submit evidence. (Zakon i Pravo)

Article 122 of the CPC of the Republic of Kazakhstan — Collection of Evidence

Replace Russian Legal Terms ConsistentlyClarify CPC and Criminal Code Abbreviations

Ниже — перевод на английский язык как есть, с сохранением структуры, нумерации и юридической терминологии.

31. What the Prosecution Must Prove

Under subparagraph 6) of part 2 of Article 110, the subject matter of proof must cover at least the following groups of circumstances:

I. The Event

• the fact of violence;
• the place;
• the time;
• the method.

II. Torture / Infliction of Severe Suffering

• physical suffering;
• mental suffering;
• torment;
• repetition/duration, where applicable;
• particular cruelty;
• abuse or humiliation.

III. Purpose

The purpose of inflicting suffering must be proven.

IV. Guilt

The intent of the accused.

V. Special Motive

• social hatred/hostility;
• or national hatred/hostility;
• or racial hatred/hostility;
• or religious hatred/hostility.

VI. Absence of Circumstances Affecting the Legal Classification

In particular:

• grievous harm;
• moderate harm;
• death;
• elements of torture under Article 146;
• other offences.

32. Medical Examination

Where bodily injuries are present, a forensic medical examination is of paramount importance.

It makes it possible to determine:

• the presence of injuries;
• the mechanism of their infliction;
• their age;
• the degree of severity of the harm;
• whether they correspond to the alleged mechanism.

The Supreme Court emphasizes the importance of forensic examination as a procedural form of evidence when factual data may be obtained through special scientific knowledge. (Law and Law)

Regulatory Resolution No. 16 of the Supreme Court of the Republic of Kazakhstan on Forensic Examination

33. Psychological Examination

In cases involving torture / infliction of severe suffering, it is particularly important that the legislature protects not only physical but also mental well-being.

If the prosecution is based on the infliction of mental suffering, the following may become relevant:

• psychological assessment;
• psychiatric assessment where there are grounds for it;
• a comprehensive forensic psychological and psychiatric examination;
• information concerning the consequences of violence.

However, an expert must not substitute for the court.

The expert establishes specific factual circumstances requiring special knowledge.

The question:

“Did the accused have a motive based on national hatred?”

should not be mechanically referred to an expert.

Legal classification and the establishment of the elements of a criminal offence fall within the competence of the criminal proceedings authority and the court.

34. Video and Audio Recordings

For this category of cases, the following may be of particular importance:

• video surveillance cameras;
• telephone recordings;
• correspondence;
• voice messages;
• social media;
• recordings of conversations;
• photographs;
• publications.

Regulatory Resolution No. 4 of the Supreme Court of the Republic of Kazakhstan dated April 20, 2006, permits the use of documents containing information in the form of computer data, photographs, film, audio and video recordings, provided that the requirements concerning admissibility and reliability are complied with. (Law and Law)

Regulatory Resolution No. 4 of the Supreme Court of the Republic of Kazakhstan on the Evaluation of Evidence

35. Evidence of the Motive of Hatred

For the purposes of the defence position, it is particularly useful to distinguish between two groups of evidence.

Group A — Evidence of the Torture / Infliction of Severe Suffering Itself

For example:

• medical records;
• expert examination;
• video recordings;
• witnesses;
• confessions;
• physical evidence.

Group B — Evidence of the Motive

For example:

• specific statements;
• messages;
• publications;
• audio recordings;
• previous similar acts;
• selection of the victim based on their affiliation with a particular group;
• witness testimony;
• correspondence preceding the offence;
• the circumstances of the conflict.

For subparagraph 6) of part 2 of Article 110, the second group of evidence has independent significance.

36. Principle of Admissibility of Evidence

The Supreme Court states that, when assessing evidence, courts must verify compliance with the law in the course of its collection.

Where the use of unlawful investigative methods is established, evidence obtained through such methods must be declared inadmissible. This applies, in particular, to allegations of coercion, torture, denial of access to counsel, and other violations. (Law and Law)

37. Unlawful Investigative Methods

If the accused claims that confessions were obtained:

• under pressure;
• through threats;
• through physical violence;
• through psychological coercion;
• through torture,

the court is obliged to examine such allegations.

The Supreme Court expressly indicates the need to verify allegations of unlawful investigative methods and to assess the results of the relevant verification together with the evidence examined at the court hearing. (Law and Law)

38. Persons Participating in Criminal Proceedings

The principal participants may include:

For the Prosecution:

• prosecutor;
• victim;
• representative of the victim;
• civil claimant;
• representative of the civil claimant.

For the Defence:

• suspect;
• accused;
• defendant;
• defence counsel;
• civil defendant;
• representative of the civil defendant.

Also:

• witnesses;
• experts;
• specialists;
• interpreters;
• other participants in the proceedings.

39. Victim

The victim is a central figure in cases involving torture / infliction of severe suffering.

The victim is simultaneously significant as:

• the person who has suffered harm;
• a source of evidence;
• a participant in the criminal proceedings;
• a potential civil claimant.

Where moral and pecuniary harm has been caused, the issue of bringing a civil claim must be addressed in a timely manner.

 Конечно. Ниже — перевод как есть, с сохранением структуры, нумерации, юридической терминологии и содержания.

40. Civil Defendant

If the damage is compensated not only by the accused directly, but also by another person by virtue of law, the issue of involving a civil defendant may arise.

For example, depending on the circumstances:

• the employer;
• the owner of a source of increased danger;
• a legal entity;
• another person bearing civil-law liability.

However, this depends on the specific factual construction of the case.

41. Civil Claim

Under Article 166 of the CPC, a civil claim may include:

• material damage;
• moral damage;
• medical treatment expenses;
• other expenses provided for by law;
• representative expenses. (Zakon i Pravo)

It is very important to establish a direct causal link between the damage and the criminal offense.

42. Moral Damage

Torture, by its nature, implies the possibility of substantial moral damage.

When substantiating the amount of compensation, it is recommended to set out:

• physical pain;
• fear;
• humiliation of dignity;
• a feeling of helplessness;
• psychological pressure;
• duration of suffering;
• consequences;
• the need for treatment;
• changes in the usual way of life;
• consequences for the family;
• publicity of the humiliation;
• the discriminatory nature of the attack.

The motive of hatred is of particular importance.

Discriminatory violence may be considered together with the nature of the humiliation and the circumstances of the crime when substantiating the amount of compensation.

43. Limitation Period for Bringing a Criminal Charge

Here, it is necessary to clearly distinguish between:

the limitation period for criminal prosecution

and

the limitation period for a civil claim.

Paragraph 6 of Part 2 of Article 110 provides for a maximum punishment of up to seven years.

Under Article 11 of the Criminal Code, this is a serious crime, since an intentional crime carrying a maximum punishment of up to 12 years is classified as a serious crime. (Adilet)

44. Limitation Period for Criminal Liability

Under Article 71 of the Criminal Code, the general limitation period for a serious crime is ten years. (Zakon i Pravo)

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

However, Part 6 of Article 71 contains a special rule on the non-application of the limitation period, in particular, to persons who have committed torture.

Therefore, when qualifying an act specifically under Article 110, it is necessary not to confuse the terminology:

“torture” under Article 110

and

“torture” under Article 146.

The issue of the non-application of the limitation period under Part 6 of Article 71 must be resolved based on the exact criminal-law qualification.

45. Limitation Period for a Civil Claim

The general limitation period under the Civil Code of the Republic of Kazakhstan is three years. (Zakon i Pravo)

However, there are exceptions.

Article 187 of the Civil Code provides that the limitation period does not apply, in particular, to claims for the protection of intangible benefits and personal non-property rights, as well as to claims for compensation for damage caused to the life or health of a citizen, with a stipulated limitation concerning the period for which recovery may be awarded when claims are brought late. (Zakon i Pravo)

Article 187 of the Civil Code of the Republic of Kazakhstan — claims to which the limitation period does not apply

Therefore, in a civil claim for moral damage and, at the same time, damage to health, it is necessary to qualify each claim separately, rather than mechanically applying the three-year limitation period to the entire claim.

46. Restoration of the Limitation Period

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

The court may recognize reasons related to the personality of the claimant as valid:

• serious illness;
• a helpless condition;
• illiteracy;
• other similar circumstances.

The reasons must have existed during the last six months of the limitation period if the general limitation period is concerned. (Zakon i Pravo)

Article 185 of the Civil Code of the Republic of Kazakhstan — restoration of the limitation period

47. Practical Approach to Restoration of the Limitation Period

In such cases, it is useful to document:

1. the date of the crime;
2. the date of the report to the police;
3. the date of registration in the Unified Register of Pre-Trial Investigations;
4. the date of receiving medical assistance;
5. the date when the consequences were established;
6. the date of termination of the criminal case, if it was terminated;
7. the date of the judgment;
8. the date when the judgment entered into legal force;
9. the reasons why the civil claim was not filed earlier.

If the victim was for a long period in a condition that objectively prevented them from applying to court, the relevant medical documents may be of significance.

48. Termination of the Criminal Case and Civil Claim

Article 166 of the CPC provides for the possibility of filing a civil claim directly within the criminal proceedings. If the civil claim was not filed, or was withdrawn or left without consideration, the legislation provides for the possibility of subsequently applying under the procedure of civil proceedings. (Zakon i Pravo)

However, it is not permissible to obtain satisfaction of the same claim twice.

49. Measures of Procedural Coercion

Preventive measures and other measures of procedural coercion may be applied to the accused.

Depending on the circumstances, the following may be applied:

• written undertaking not to leave the place of residence;
• personal guarantee;
• bail;
• house arrest;
• detention;
• other measures provided for by the CPC.

50. Detention

Article 147 of the CPC provides for the possibility of detention where the conditions established by law are present.

General rule:

the measure is applied with the authorization of a judge and where a less restrictive measure cannot be applied.

For crimes punishable by imprisonment for a term exceeding five years, the relevant ground is expressly provided by law. (Zakon i Pravo)

Since Paragraph 6 of Part 2 of Article 110 provides for a maximum punishment of seven years, the issue of choosing detention as a preventive measure may arise; however, the mere existence of a sanction of “four to seven years” does not automatically mean detention.

The court must assess the grounds provided for by the CPC and the impossibility of applying a more lenient measure.

Article 147 of the CPC of the Republic of Kazakhstan — detention

При необходимости могу также сделать вторую версию — в более строгом англоязычном юридическом стиле для подачи иностранному адвокату, суду или международной организации, без изменения правового содержания.

Конечно. Ниже — перевод как есть, с сохранением структуры, нумерации, юридической терминологии и ссылок.

51. Protection of the Victim

Where there are threats from the accused or persons in their circle, the issue of security measures should be considered.

This is particularly important in cases involving:

• family conflict;
• dependency of the victim;
• repeated violence;
• threats;
• attempts to exert pressure on witnesses;
• attempts to force the victim to withdraw their testimony.

The Convention against Torture separately requires applicants and witnesses to be protected from ill-treatment or intimidation in connection with a complaint. (Zakon i Pravo)

52. Case Law of the Supreme Court

An important methodological point should be made here.

There are significantly more publicly available materials of the Supreme Court concerning:

• the general offence of torture;
• torture;
• assessment of evidence;
• unlawful investigative methods;
• distinction between Article 110 and Article 146,

than there are materials directly concerning paragraph 6 of part 2 of Article 110 — the motive of hatred/hostility.

Therefore, it would not be correct to create the appearance of extensive separate Supreme Court statistics specifically concerning paragraph 6 where the publicly available materials do not demonstrate such statistics.

53. Regulatory Resolution No. 1 dated 11 May 2007

Of key importance is the regulatory resolution of the Supreme Court of the Republic of Kazakhstan “On Qualification of Certain Criminal Offences against Human Life and Health.”

Paragraph 31-2, concerning the mandatory elements of Article 110 of the Criminal Code, is particularly important. (Adilet)

For a lawyer, this means:

if the prosecution fails to prove at least one mandatory element of torture, the dispute concerning the motive of hatred becomes secondary.

First, the objective and subjective elements of the offence of torture itself must be proven.

54. Supreme Court Practice on Evidence

Regulatory Resolution No. 4 dated 20 April 2006 requires the court to examine:

• relevance;
• admissibility;
• reliability;
• sufficiency of evidence.

It is particularly important that the Supreme Court requires allegations of unlawful investigative methods to be examined and the consequences of the inadmissibility of evidence to be applied. (Zakon i Pravo)

55. Supreme Court Practice on Torture

Regulatory Resolution No. 7 dated 28 December 2009, as subsequently amended, is the key instrument for distinguishing between:

• torture;
• torture;
• cruel treatment;
• abuse of authority.

In 2020, a separate clarification concerning the concurrence of Article 146 and paragraph 4 of part 2 of Article 110 was introduced, and in 2023 this approach was further updated. (Zakon i Pravo)

56. Practice of Courts of First Instance

Actual cases under Article 110 can be found in publicly available judicial practice, although not every one of them concerns the motive of hatred.

For example, a published material concerning a case heard by Court No. 2 of the City of Aktobe describes a case under part 2 of Article 110 of the Criminal Code, in which an employee of a social institution systematically assaulted minors. The evidence included, in particular, the defendant’s testimony and a video recording. (• ZАҢ gazeti website - Yuridicheskaya gazeta)

This illustrates the importance of:

video recording + testimony + objective consequences of violence.

57. Another Example of First-Instance Practice

In the case widely covered in connection with the death of Saltanat Nukenova, the charges included paragraph 1 of part 2 of Article 110 of the Criminal Code — torture of a person who was financially dependent. (Tengrinews)

This case is not an example of qualification under paragraph 6 of part 2 of Article 110, but it is of practical interest for understanding what factual circumstances courts examine when establishing systematic violence and the victim’s dependency.

58. Appellate Practice

The appellate court reviews the legality and validity of the judgment within the limits established by the Criminal Procedure Code.

For the offence in question, potential grounds for appeal may include:

On the part of the prosecution:

• incorrect legal qualification;
• exclusion of an improperly alleged motive;
• insufficient examination of evidence;
• improper sentencing;
• improper resolution of the civil claim.

On the part of the defence:

• lack of evidence of torture itself;
• absence of intent;
• absence of the purpose of causing suffering;
• absence of particular cruelty;
• lack of evidence of the motive of hatred;
• inadmissibility of evidence;
• contradictions in the expert examination;
• violation of the right to defence.

59. Time Limit for Appeal

Under Article 418 of the Criminal Procedure Code, appeals shall be filed within 15 days from the date of pronouncement of the judgment, while for convicted persons held in custody, the same period runs from the date of delivery of a copy of the judgment. (Zakon i Pravo)

Article 418 of the Criminal Procedure Code of the Republic of Kazakhstan — time limit for appellate review

A missed time limit may be restored where the grounds provided by law are present.

60. Separately on Restoration of a Procedural Time Limit

It is necessary to distinguish between:

the limitation period

and

the procedural time limit.

Procedural time limits are governed by the rules of the Criminal Procedure Code, while a civil claim is governed, as applicable, by the provisions of the Civil Code and the Civil Procedure Code.

An appeal in a criminal case cannot automatically rely on Article 185 of the Civil Code as a ground for restoring the time limit for filing an appeal.

If you want, I can also make the English version more formal and suitable for submission to an international court, UN body, or foreign counsel, while preserving the legal meaning.

Ниже — перевод на английский с сохранением структуры, нумерации и юридической терминологии максимально близко к оригиналу.

61. Appeal and Motive of Hatred

In an appeal against a judgment under paragraph 6 of part 2 of Article 110, it is advisable to include a separate section:

“Failure to Prove the Qualifying Motive Provided for by Paragraph 6 of Part 2 of Article 110 of the Criminal Code of the Republic of Kazakhstan.”

The following should then be analyzed:

1. which evidence confirms the motive;
2. whether such evidence is admissible;
3. whether it establishes specifically the motive;
4. or merely confirms the fact of the conflict;
5. whether there are alternative motives;
6. whether a causal link has been established between the victim’s membership in a particular group and the violence.

62. Example of the Defense Structure

For example:

The victim and the defendant had been in a prolonged conflict over property-related matters. The prosecution relies on the use by the defendant of an insulting expression referring to the victim’s nationality. However, the prosecution does not establish that the victim’s nationality was the motive for committing the torture. It is necessary to distinguish emotional statements made during a conflict from the specific motive of the crime.

This does not automatically mean that the elements of the offense are absent.

However, it requires the prosecution to prove the qualifying element by appropriate evidence.

63. Example of the Victim’s Position

From the victim’s side, on the contrary, it is advisable to establish a chain of evidence:

the victim’s membership in a particular group → the defendant’s awareness of such membership → relevant statements/actions prior to the crime → selection of the victim specifically on that basis → violent acts → repetition of discriminatory conduct during the torture → corroboration by witnesses/correspondence/video recording.

The more consistent such a chain is, the greater its evidentiary significance.

64. Significance of the Defendant’s Conduct After the Crime

Conduct after the crime may have evidentiary significance.

For example:

• continuation of insults;
• publications;
• messages to the victim;
• threats;
• justification of violence based on the victim’s membership in a particular group;
• attempts to force the victim to withdraw the complaint.

However, post-criminal conduct in itself should not automatically be regarded as evidence of the motive existing at the time the crime was committed.

It must be assessed in conjunction with the totality of the evidence.

65. Significance of Prior Conduct

Similarly, the following may be relevant:

• previous conflicts;
• messages;
• threats;
• publications;
• previous acts of discrimination;
• statements.

The temporal proximity of the relevant circumstances to the crime is particularly important.

66. Separate Court Ruling

The Supreme Court indicates that, upon identifying violations of the law, a court may report them to the prosecutor by issuing a separate court ruling.

The Supreme Court Regulatory Resolution on the practice of issuing separate court rulings provides for the possibility of responding to violations identified at the pre-trial stage. (Zakon i Pravo)

Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan on Separate Court Rulings

67. Procedural Coercive Measures Against Witnesses

The Criminal Procedure Code provides procedural mechanisms to ensure the appearance of participants, the performance of procedural duties, and the prevention of obstruction of the proceedings.

This is particularly relevant in torture cases where witnesses:

• fear the defendant;
• are relatives;
• are dependent on the defendant;
• are subjected to pressure.

68. Protection of Witnesses

Where there is a genuine threat, the issue of applying the security measures provided for by law must be raised.

Under international law, a similar guarantee is expressly provided for in Article 13 of the Convention against Torture — protection of the complainant and witnesses from ill-treatment and intimidation. (Zakon i Pravo)

69. Regulatory Legal Acts Governing the Category of Cases in Question

The principal body of legislation may be presented as follows.

Constitution of the Republic of Kazakhstan

Key provisions:

• human dignity;
• equality;
• judicial protection;
• legality;
• human rights.

Criminal Code of the Republic of Kazakhstan

Key Articles:

• Article 3 — basic concepts;
• Article 4 — applicability of criminal law;
• Article 10 — criminal offenses;
• Article 11 — categories of crimes;
• Article 15 — age of criminal responsibility;
• Article 19 — guilt;
• Article 22 — circumstances aggravating criminal liability;
• Article 68 — reconciliation;
• Article 71 — limitation periods;
• Article 110 — torture;
• Article 146 — torture;
• Article 174 — incitement of social, national, tribal, racial, class or religious discord.

70. Criminal Procedure Code of the Republic of Kazakhstan

Of particular importance are:

• Article 7 — basic concepts;
• Article 8 — objectives of criminal proceedings;
• Article 19 — presumption of innocence;
• Article 24 — comprehensive, complete and objective examination of the circumstances;
• Article 71 — victim;
• Article 80 — specialist;
• Article 106 — judicial control;
• Article 112 — inadmissibility of evidence;
• Articles 115–125 — evidence;
• Article 122 — collection of evidence;
• Article 125 — assessment of evidence;
• Articles 136–147 — preventive measures;
• Article 166 — civil claims;
• Article 167 — filing of a civil claim;
• Article 179 — commencement of pre-trial investigation;
• Article 186 — transfer according to investigative jurisdiction;
• Article 306 — jurisdiction;
• Article 418 — appeal;
• Article 431 and subsequent Articles — powers of the appellate court.

71. Civil Code of the Republic of Kazakhstan

For a civil claim:

• Article 9 — methods of protection;
• Article 917 — general grounds for liability for causing harm;
• provisions on non-pecuniary damage;
• Articles 177–185 — limitation periods;
• Article 178 — general three-year limitation period;
• Article 180 — commencement of the limitation period;
• Article 185 — restoration;
• Article 187 — claims to which the limitation period does not apply.

72. Civil Procedure Code of the Republic of Kazakhstan

It applies to the extent that the Criminal Procedure Code does not regulate the relevant issue concerning a civil claim.

This follows directly from Article 166 of the Criminal Procedure Code. (Zakon i Pravo)

73. Law “On Mediation”

It may be relevant with respect to the settlement of civil-law claims and those criminal-law situations in which criminal law permits reconciliation.

However:

mediation ≠ automatic termination of criminal proceedings.

The restrictions under Article 68 of the Criminal Code must always be examined.

74. Law “On Legal Acts”

For determining the legal force of subordinate legislation, the Law of the Republic of Kazakhstan “On Legal Acts” is of fundamental importance.

A subordinate regulatory legal act is defined as an act issued on the basis of and/or in implementation of, or for the further implementation of, laws and other higher-level regulatory legal acts. (Zakon i Pravo)

Article 1 of the Law “On Legal Acts”

75. Hierarchy of Regulatory Legal Acts

Article 4 of the Law “On Legal Acts” provides for the systemic nature of legislation and the necessity of observing the hierarchy of regulatory legal acts. (Zakon i Pravo)

Article 12 provides that:

where provisions of acts of different levels conflict, the provision of the higher-level act shall apply. (Zakon i Pravo)

Article 12 of the Law “On Legal Acts”

Accordingly, a ministerial order or other subordinate regulation cannot alter the elements of a criminal offense established by the Criminal Code, and, even more so, cannot expand criminal liability by analogy.

76. Significance of Regulatory Resolutions of the Supreme Court

Regulatory resolutions of the Supreme Court are of particular importance for the uniform application of criminal and criminal procedural legislation.

For Article 110, the following are particularly important:

1. Regulatory Resolution No. 1 of the Supreme Court of the Republic of Kazakhstan dated 11 May 2007

On the qualification of criminal offenses against life and health. (Adilet)

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

On personal liberty, human dignity, torture and cruel treatment. (Zakon i Pravo)

3. Regulatory Resolution No. 4 of the Supreme Court of the Republic of Kazakhstan dated 20 April 2006

On certain issues concerning the assessment of evidence in criminal cases. (Zakon i Pravo)

4. Regulatory Resolution No. 16 of the Supreme Court of the Republic of Kazakhstan dated 26 November 2004

On forensic examination in criminal cases. (Zakon i Pravo)

5. Regulatory Resolution No. 4 of the Supreme Court of the Republic of Kazakhstan dated 20 April 2018

On the court judgment. (Zakon i Pravo)

77. Direct Effect of Regulatory Legal Acts

Article 11 of the Law “On Legal Acts” establishes the principle of direct effect of regulatory legal acts. (Zakon i Pravo)

This has practical significance:

the absence of a separate instruction does not mean that the provision of the Criminal Code cannot be applied if the provision itself directly regulates the relevant relationship.

78. Main Evidentiary Issue under Paragraph 6 of Part 2 of Article 110

From the perspective of legal practice, the case may be divided into two separate evidentiary blocks:

Block No. 1

Was the torture committed?

Block No. 2

Why did the defendant do it?

With regard to the second block, it is necessary to prove specifically:

social, national, racial or religious hatred/hostility.

If the second block has not been proven, the issue arises of reclassification under the relevant part of Article 110 without the qualifying motive, or under another offense depending on the facts established.

79. Example of Comprehensive Qualification

Assume:

A systematically beat B.

At the same time:

• B belongs to a different nationality;
• A knew this;
• they had previously had conflicts;
• during the violence, A repeatedly used national insults;
• in correspondence prior to the attack, A wrote that he would “punish” B for belonging to the relevant national group;
• the video recording confirms the nature of the violence;
• the expert examination confirms the infliction of physical suffering.

In this case, the evidentiary system may include:

1. video — the fact of violence;
2. expert examination — physical consequences;
3. correspondence — motive;
4. witnesses — circumstances;
5. the victim’s testimony — sequence of events;
6. digital forensic examination — attribution of the account;
7. other information — purpose and context.

80. Counterexample

If, however, it is established that:

• there was a dispute over money;
• the parties had been in conflict for a long time;
• the defendant used a national insult once during the fight;
• there had been no similar statements before the conflict;
• the violence was aimed at collecting a debt;

then the defense may raise the following question:

was the motive of national hatred actually proven, or was the national insult merely a situational part of a personal conflict?

This cannot be resolved automatically in favor of either party. The court must assess the totality of the evidence.

Refine the legal English terminologyMake the translation more formal

Да. Перевожу вышеуказанный текст (разделы 81–100) на английский как есть, без сокращения и изменения юридического содержания, с сохранением нумерации и структуры.

81. Supreme Court: General Standard of Assessment

The courts may not replace proof of the motive with assumptions. Regulatory Resolution No. 4 requires evidence to be assessed according to the procedural criteria established by law. For example, the fact that the defendant used national insults does not, by itself, prove the motive of national hatred without establishing the context and its connection with the commission of the crime.

82. Video Evidence

Video recordings may be particularly important for establishing the circumstances of the incident, the behavior of the perpetrator, the victim's behavior, the presence of threats, insults, humiliation, violence, as well as the sequence of events.

When assessing video recordings, it is necessary to establish their source, authenticity, integrity, the circumstances of their acquisition, and whether they were properly attached to the criminal case.

83. Social Networks

Publications, comments, messages, photographs, videos and other materials posted on social networks may constitute evidence of the motive of national, racial, religious or social hatred or hostility.

At the same time, the mere existence of such publications does not automatically prove the motive. It is necessary to establish their authorship, authenticity, date, context and direct connection with the criminal act.

84. Electronic Evidence

Electronic evidence, including correspondence, messages, audio recordings, video recordings, screenshots, metadata and other digital information, must be assessed with due regard to its authenticity and reliability.

The court should establish whether the information has been altered, whether it was obtained lawfully, and whether there is a reliable connection between the digital information and the person to whom it is attributed.

85. Appellate Review

When reviewing a criminal case in the appellate instance, particular attention should be paid to whether the court of first instance properly established the motive of the crime and whether the conclusions concerning the presence of the qualifying element provided for in paragraph 6 of part 2 of Article 110 are supported by the totality of the evidence.

If the conclusion regarding the motive is based solely on assumptions or isolated circumstances, the appellate court must assess the sufficiency and admissibility of the evidence.

86. Practice of the Courts of First Instance

The courts of first instance should clearly distinguish between:

1. the fact that the crime was committed;
2. the identity of the person who committed it;
3. the form of guilt;
4. the motive for the crime;
5. the presence of qualifying elements;
6. the consequences of the criminal act.

The presence of a motive of national, racial, religious or social hatred or hostility must be established on the basis of evidence and cannot be presumed.

87. Punishment

The establishment of the motive provided for in paragraph 6 of part 2 of Article 110 affects the legal qualification of the act and, accordingly, the punishment imposed by the court.

The court must take into account the nature and degree of public danger of the crime, the circumstances of its commission, the identity of the perpetrator, the consequences of the crime and other circumstances provided for by law.

88. Effect of the Motive of Hatred on Sentencing

A motive of national, racial, religious or social hatred or hostility constitutes a legally significant circumstance where it is established as a qualifying element of the crime.

The court must indicate in the judgment the specific evidence on the basis of which the relevant motive has been established and explain its conclusions.

89. Multiple Qualifying Elements

If several qualifying elements are established simultaneously, each of them must be properly reflected in the legal qualification of the act.

At the same time, the court must avoid double counting of the same circumstance when determining the legal qualification and imposing punishment.

90. Pregnant Victim

If the victim is a pregnant woman, the relevant circumstance must be assessed in accordance with the applicable provisions of the Criminal Code and other legislation.

The fact of pregnancy must be established by appropriate evidence and may have legal significance both for the qualification of the act and for determining the punishment.

91. Error in Qualification

An incorrect qualification of the act under paragraph 6 of part 2 of Article 110 may result in a violation of the rights of the parties to the criminal proceedings and may constitute grounds for changing or setting aside the judicial act in accordance with the procedure established by law.

The court must distinguish between circumstances that constitute elements of the crime and circumstances that merely characterize the personality of the accused or the general background of the conflict.

92. Distinction between Article 174 and Article 110 of the Criminal Code

Article 174 of the Criminal Code and Article 110 of the Criminal Code protect different legal interests and establish liability for different criminal acts.

The existence of statements or actions directed against a particular social, national, racial or religious group does not by itself mean that the act must necessarily be qualified under Article 174.

Where the relevant motive is established as a qualifying element of the act provided for by Article 110, the act must be qualified in accordance with the applicable provision of Article 110, subject to all elements of the relevant offence being established.

93. Constitutional Principle of Equality

The constitutional principle of equality and the prohibition of discrimination require the State to ensure equal protection of the rights and freedoms of all persons.

The investigation and judicial examination of crimes motivated by national, racial, religious or social hatred or hostility must therefore be carried out objectively, comprehensively and impartially.

94. Relevance of the Convention against Torture

The provisions of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment may be relevant to the assessment of acts involving the infliction of physical or mental suffering.

At the same time, the international legal content of the prohibition of torture must be distinguished from the specific elements of the criminal offence provided for by the national criminal legislation.

95. National or Religious Hatred as a Qualifying Motive

National or religious hatred or hostility may constitute a qualifying motive where it is established that the victim was subjected to violence, torture or other unlawful treatment precisely because of the victim's national, racial, religious or social affiliation.

The court must establish the causal connection between the relevant motive and the commission of the criminal act.

96. Checklist for the Victim's Lawyer

The victim's lawyer should consider the following circumstances:

1. whether the statements and actions of the accused contain indications of hatred or hostility;
2. whether the accused made statements concerning the victim's nationality, race, religion or social status;
3. whether similar statements or actions occurred before or after the crime;
4. whether there are witnesses who can confirm the relevant circumstances;
5. whether correspondence, audio or video recordings, publications or other digital evidence exists;
6. whether expert examinations are necessary;
7. whether there is a causal connection between the motive and the criminal act;
8. whether all relevant evidence has been properly collected and attached to the criminal case;
9. whether the qualifying element provided for in paragraph 6 of part 2 of Article 110 has been properly established.

97. Checklist for the Defense Lawyer

The defense lawyer should assess:

1. whether the prosecution has established the objective elements of the offence;
2. whether the motive of national, racial, religious or social hatred or hostility has been proven;
3. whether the evidence relied upon by the prosecution is admissible, relevant and reliable;
4. whether the statements attributed to the accused have been taken out of context;
5. whether there is a causal connection between the alleged motive and the commission of the crime;
6. whether the prosecution is relying on assumptions rather than evidence;
7. whether the requirements of the presumption of innocence have been complied with;
8. whether the qualifying element under paragraph 6 of part 2 of Article 110 has been properly established.

98. Formula for Applying Paragraph 6 of Part 2 of Article 110

The legal qualification under paragraph 6 of part 2 of Article 110 requires the simultaneous establishment of:

• the commission of the act provided for by Article 110;
• the relevant elements of the offence;
• the absence of serious or moderate harm as a result of the basic offence, where such absence is relevant to the applicable legal qualification;
• the motive of national, racial, religious or social hatred or hostility;
• the causal connection between the motive and the commission of the criminal act;
• the guilt of the accused in the form required by law.

The mere fact that the accused expressed negative views regarding a particular group is insufficient to establish the qualifying motive without proving that such motive actually determined the commission of the crime.

99. Distinction between Proof of Torture and Proof of the Motive

The establishment of the fact that the victim was subjected to torture, cruel treatment or other unlawful acts does not in itself establish the motive of national, racial, religious or social hatred or hostility.

These circumstances must be established separately.

The prosecution must prove both the objective elements of the criminal offence and the specific motive that served as the basis for the qualifying element.

Accordingly, evidence confirming the fact of physical or mental suffering cannot automatically be regarded as evidence confirming the motive of hatred.

100. General Conclusion

For the application of paragraph 6 of part 2 of Article 110 of the Criminal Code, the courts and bodies conducting the criminal proceedings must establish, on the basis of admissible, relevant and reliable evidence, not only the fact of the commission of the criminal act, but also the specific motive of national, racial, religious or social hatred or hostility.

The motive must be established through a comprehensive assessment of all the circumstances of the case, including the statements and actions of the accused, the circumstances preceding and following the crime, the relationship between the accused and the victim, electronic evidence, witness testimony, expert conclusions and other evidence.

The legal qualification cannot be based solely on assumptions, general characteristics of the accused, isolated statements or the mere existence of a conflict.

The court must clearly state in the judgment the evidence on which the conclusion regarding the qualifying motive is based and provide appropriate reasons for its conclusions.

References:

1. Criminal Code of the Republic of Kazakhstan.
2. Criminal Procedure Code of the Republic of Kazakhstan.
3. Civil Code of the Republic of Kazakhstan.
4. Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan No. 4.
5. Constitution of the Republic of Kazakhstan.
6. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
7. International Covenant on Civil and Political Rights.
8. Universal Declaration of Human Rights.
9. European Convention on Human Rights.
10. Relevant regulatory legal acts of the Republic of Kazakhstan.
11. Judicial practice of the Supreme Court of the Republic of Kazakhstan.
12. Judicial practice of the courts of first instance and appellate courts.
13. Provisions concerning the admissibility and reliability of evidence.
14. Provisions concerning the presumption of innocence.
15. Provisions concerning the protection of victims and witnesses.
16. Provisions concerning measures of procedural coercion.
17. Provisions concerning forensic examinations.
18. Provisions concerning electronic and digital evidence.
19. Provisions concerning the protection of personal data.
20. Provisions concerning equality and non-discrimination.
21. Provisions concerning criminal liability for acts motivated by hatred or hostility.
22. Other applicable legislation and judicial practice.

Если хотите, я могу также перевести разделы 1–80 в том же стиле, чтобы весь документ был единообразным на английском языке.

Attention!   

       Law and Law Law Law draws your attention to the fact that this document is basic and does not always meet the requirements of a particular situation. Our lawyers are ready to assist you in legal advice, drawing up any legal document suitable for your situation.  

 For more information,  please contact a Lawyer / Attorney by phone: +7 (708) 971-78-58; +7 (700) 978 5755, +7 (700) 978 5085. 

Attorney at Law Almaty Lawyer Legal Services Legal Advice Civil Criminal Administrative Cases Disputes Protection Arbitration Law Firm Kazakhstan Law Office  Court Cases