Torture of a Kidnapped Person or a Person Taken Hostage

1. General Characteristics of the Criminal Law Provision

Article 110 of the Criminal Code of the Republic of Kazakhstan establishes criminal liability for torture, namely the infliction of physical or mental suffering through violent acts committed with particular cruelty or humiliation, for the purpose of causing torment to the victim, provided that the act does not result in serious or moderately serious harm to health.

Under the current version of Part One of Article 110, the penalties include corrective labor in an amount of up to 1,000 MCI, community service for up to 600 hours, or imprisonment for a term of up to three years.

Part Two of Article 110 establishes increased criminal liability for the same act when aggravating circumstances are present. In particular, pursuant to Subparagraph 1) of Part 2 of Article 110 of the Criminal Code, a qualified offence is the commission of torture:

• against a person known to be a minor;
• against a person known to be in a helpless condition;
• against a person who is materially or otherwise dependent on the perpetrator;
• against a person who has been kidnapped or taken hostage.

The penalty for this offence is imprisonment for a term of four to seven years.

The current text of Article 110 on zakonpravo.kz confirms that the circumstance of kidnapping or taking hostage is contained specifically in Subparagraph 1) of Part 2 of Article 110, while Subparagraph 4) of Part 2 of Article 110, which previously concerned torture, was excluded by Law of the Republic of Kazakhstan No. 212-VII dated March 17, 2023.

Article 110 of the Criminal Code of the Republic of Kazakhstan — Torture

Thus, when qualifying the act under consideration, it is necessary to proceed from the combination of at least four elements:

1. the existence of physical or mental suffering;
2. the existence of violent acts;
3. the existence of a method of commission предусмотренный by law — particular cruelty or humiliation, and the intent to cause torment to the victim;
4. a specific aggravating circumstance — the victim was kidnapped or taken hostage, and, for qualification under this provision, the perpetrator must have encompassed the victim's relevant status with their intent.

It is particularly important that kidnapping or taking a hostage are not forms of torture itself. These are independent criminal offences which, where the necessary elements are present, may constitute a separate aggregate of crimes.

2. Direct Object of the Crime

The principal direct object of torture is a person's health and physical or mental inviolability.

In the case of qualified torture, the degree of infringement upon the victim's personal liberty is also significantly increased.

Therefore, in practice, several legally protected interests are affected simultaneously:

• physical inviolability;
• mental inviolability;
• personal dignity;
• health;
• personal liberty;
• personal security.

Constitutional protection is of fundamental importance.

Article 17 of the Constitution of the Republic of Kazakhstan establishes the inviolability of human dignity and expressly provides that no one shall be subjected to torture, violence, or other cruel or degrading treatment or punishment that humiliates human dignity.

Article 17 of the Constitution of the Republic of Kazakhstan on zakonpravo.kz

Consequently, Article 110 of the Criminal Code must be interpreted in conjunction with the constitutional prohibition of torture, violence, and treatment degrading human dignity.

3. Why the Legislator Specifically Identifies Kidnapped Persons and Hostages

A person held by a criminal as a result of kidnapping or hostage-taking is objectively in a significantly more vulnerable position.

The perpetrator obtains actual control over:

• the victim's ability to move freely;
• the victim's ability to seek assistance;
• the victim's ability to leave the place where they are being held;
• access to medical assistance;
• the ability to report the crime;
• the ability to resist violence.

It is precisely for this reason that inflicting additional physical or mental suffering on such a person constitutes an independent aggravating circumstance.

Two possible mechanisms must be distinguished here:

the first: a person was kidnapped, after which the perpetrator began torturing them;

the second: a person was taken hostage, after which the perpetrator subjected them to torture.

In both cases, the legislator provides for the same qualification under Subparagraph 1) of Part 2 of Article 110 of the Criminal Code, provided that all other elements of torture are established.

4. The Concept of "Knowledge" in Relation to a Kidnapped Person or Hostage

An important practical question is whether the perpetrator must know that the victim has been kidnapped or taken hostage.

The answer must be derived from the principles of criminal liability and the subjective element of the offence.

An aggravating circumstance must not be automatically attributed to a person solely on the basis of an objective fact.

For qualification, it is necessary to establish that the person:

• knew of the victim's relevant status;
• or was aware of the factual circumstances indicating kidnapping or hostage-taking;
• or, at a minimum, encompassed the relevant circumstances within their intent.

For example, if A kidnaps citizen B, holds them in premises, and subsequently systematically inflicts torment upon them, the question of applying Subparagraph 1) of Part 2 of Article 110 is resolved directly.

However, if C accidentally discovers B in premises, does not know how B came to be there, and inflicts suffering upon them, the automatic attribution of the aggravating circumstance of "a kidnapped person" requires additional proof of C's awareness.

5. Objective Element of Torture

The objective element consists of inflicting physical or mental suffering through violent acts.

Such acts may include:

• repeated blows;
• systematically inflicting pain;
• tying up the victim;
• depriving the victim of the opportunity to sleep;
• prolonged exposure to painful methods;
• inflicting pain without necessarily causing bodily injuries;
• psychological pressure;
• humiliation;
• prolonged intimidation;
• other violent acts aimed at causing torment.

However, not every act of violence automatically constitutes torture.

For the purposes of Article 110, it is essential to establish the nature of the perpetrator's conduct and its intention to cause torment.

6. Distinguishing Torture from Intentional Infliction of Harm to Health

Article 110 expressly contains a limitation: the act must not result in serious or moderately serious harm to health.

Therefore, where such harm is established, the question arises as to the application of:

• Article 106 of the Criminal Code — intentional infliction of serious harm to health;
• Article 107 of the Criminal Code — intentional infliction of moderately serious harm to health;
• other provisions of the Special Part of the Criminal Code, depending on the circumstances.

In other words, Article 110 is not a universal provision applicable to any form of systematic violence.

If the actual consequences correspond to another, more serious offence, the qualification must be carried out taking the relevant provision into account.

7. Mental Suffering

The existence of visible bodily injuries is not mandatory for the application of Article 110.

Mental suffering may be expressed in:

• prolonged fear;
• a feeling of helplessness;
• threats;
• humiliation;
• being forced to witness violence;
• threats of harm to family members;
• artificially creating a perception that pain or death is inevitable;
• prolonged confinement in a stressful environment.

This is particularly important in cases of hostage-taking.

A hostage is already in a state of heightened psychological vulnerability. Therefore, additional acts aimed at causing torment may constitute psychological torture.

8. Particular Cruelty and Humiliation

For qualification under Parts One and Two of Article 110, it is necessary to establish the method of inflicting suffering provided for in the disposition of the article.

Particular cruelty characterizes the increased intensity and nature of the violence.

Humiliation implies degrading, tormenting, and demonstrative treatment of the victim, aimed not merely at causing pain but specifically at causing suffering and torment.

At the same time, the aggravating circumstance of "a kidnapped person or a person taken hostage" does not replace the mandatory elements of torture itself.

That is, it is insufficient to establish:

"The victim was a hostage; therefore, any violence against them constitutes torture."

It is necessary to establish:

"The victim was a hostage, and the perpetrator committed acts against them that contain the elements of torture."

9. Purpose of Causing Torment

The subjective element of Article 110 is characterized by direct intent.

The perpetrator must be aware of the nature of their actions and desire to cause physical or mental suffering to the victim.

The purpose is of particular importance:

to cause torment to the victim.

Therefore, it is necessary to examine:

• the number of acts;
• their duration;
• their intensity;
• the method of violence;
• the circumstances of confinement;
• the perpetrator's statements;
• the perpetrator's conduct after inflicting pain;
• the perpetrator's attitude toward the victim's suffering;
• the existence of other motives.

10. Moment of Completion of the Crime

Torture is a completed offence from the moment the acts constituting the conduct предусмотренное by Article 110 are committed.

Completion of the offence does not require:

• prolonged medical treatment;
• the onset of a specific illness;
• loss of working capacity;
• the infliction of serious or moderately serious harm to health;
• the victim seeking medical assistance.

At the same time, the actual consequences are relevant to distinguishing Article 110 from other offences.

11. Relationship with Article 125 of the Criminal Code — Kidnapping

Kidnapping is an independent crime.

Article 125 of the Criminal Code establishes liability for kidnapping, while its aggravated forms provide for increased liability, in particular where the offence is committed with violence dangerous to life or health, using weapons, by a group of persons, against two or more persons, for mercenary motives, and in other cases предусмотренных by law.

Part Three provides for even more severe liability, including where the offence is committed by a criminal group, for the purpose of exploiting the kidnapped person, against a person known to be a minor, or where it results in death through negligence or other grave consequences.

Article 125 of the Criminal Code of the Republic of Kazakhstan — Kidnapping

In practice, it is necessary to determine whether the violence is covered by the elements of kidnapping or constitutes an independent crime.

If, after kidnapping, a person is systematically tortured for the purpose of causing torment, the following aggregate of crimes may arise:

Article 125 of the Criminal Code + Subparagraph 1) of Part 2 of Article 110 of the Criminal Code.

However, the mechanical addition of articles is inadmissible.

The independent nature of each offence must be established.

12. Relationship with Article 261 of the Criminal Code — Hostage-Taking

Article 261 of the Criminal Code establishes liability for taking or holding a person hostage for the purpose of compelling a state, organization, or another person to perform a certain action or refrain from performing an action as a condition for the release of the hostage.

The penalty for the basic offence is imprisonment for a term of three to eight years.

If the offence is committed by a criminal group or results in the death of a person through negligence or other grave consequences, the penalty is substantially increased.

Article 261 of the Criminal Code of the Republic of Kazakhstan — Hostage-Taking

Therefore, the qualification may be as follows:

Article 261 of the Criminal Code + Subparagraph 1) of Part 2 of Article 110 of the Criminal Code.

At the same time, it must be proven that the acts constituting torture are not absorbed by the offence of hostage-taking.

13. Key Difference Between Kidnapping and Hostage-Taking

Kidnapping is primarily aimed at the unlawful deprivation of a person's liberty through taking possession of the person, moving them, and holding them against their will.

Hostage-taking contains an additional mandatory element:

the purpose of compelling a third party, organization, or state to engage in certain conduct as a condition for the release of the hostage.

This element is central to distinguishing the two offences.

Accordingly:

kidnapping:

seizure/movement/detention of a person;

hostage-taking:

seizure or detention + a demand for certain conduct by a third party/organization/state as a condition for the release of the hostage.

14. Possible Aggregate of Crimes

Depending on the actual circumstances, the following may arise:

Option 1

Kidnapping + torture:

Article 125 of the Criminal Code + Subparagraph 1) of Part 2 of Article 110 of the Criminal Code.

Option 2

Hostage-taking + torture:

Article 261 of the Criminal Code + Subparagraph 1) of Part 2 of Article 110 of the Criminal Code.

Option 3

Kidnapping + serious harm to health:

Article 125 of the Criminal Code + Article 106 of the Criminal Code, provided that the necessary elements of both offences are present.

Option 4

Hostage + serious harm to health:

Article 261 of the Criminal Code + Article 106 of the Criminal Code, where an independent offence of inflicting serious harm to health is established.

Option 5

Kidnapping + sexual offence + torture.

Depending on the circumstances, an aggregate of several crimes may arise.

15. Age of Criminal Liability

Article 15 of the Criminal Code is of particular importance.

The general age of criminal liability is 16 years.

At the same time, the legislator has established a list of offences for which liability begins at the age of 14.

The following are expressly included in this list:

• kidnapping — Article 125;
• hostage-taking — Article 261.

Article 15 of the Criminal Code of the Republic of Kazakhstan — Persons Subject to Criminal Liability

At the same time, when qualifying torture specifically under Article 110, it is necessary to separately take into account the age-related structure of criminal liability for the relevant act.

If a person aged 14–15 participates simultaneously in kidnapping and subsequent violence, the issue of liability must be resolved separately for each offence, taking Article 15 of the Criminal Code into account.

16. Investigative Jurisdiction

Since the qualification under consideration falls within criminal law, the issue of "jurisdiction" in the civil-law sense is replaced here primarily by the following issues:

• investigative jurisdiction;
• judicial jurisdiction;
• competence of the criminal prosecution authority;
• judicial review at the pre-trial stage.

Specific investigative jurisdiction is determined in accordance with the CPC of the Republic of Kazakhstan, taking into account the elements of the offence, the circumstances of the case, the identity of the offender, and other factors предусмотренные by law.

Where several interconnected offences are involved, the issue of investigating the case may be resolved taking into account the rules on consolidation of criminal cases and investigative jurisdiction.

17. Judicial Jurisdiction

Article 306 of the CPC establishes the general rule: district and equivalent courts act as courts of first instance and hear criminal cases, except for cases assigned by law to the jurisdiction of specialized courts.

Article 308 of the CPC assigns cases involving especially serious crimes and other expressly listed offences to specialized inter-district criminal courts.

Chapter 40 of the CPC of the Republic of Kazakhstan — Jurisdiction of Criminal Cases

Consequently, where the charge is qualified exclusively under Subparagraph 1) of Part 2 of Article 110 of the Criminal Code, the case, as a general rule, falls within the jurisdiction of a district or equivalent court.

However, if a person is also charged under Article 110 with an especially serious crime, for example, an aggravated form of another offence, the case may fall within the jurisdiction of a specialized inter-district criminal court.

For this reason, judicial jurisdiction must be determined not only by reference to Article 110 but also by reference to the entire aggregate of charges brought.

18. Change of Judicial Jurisdiction

If a court establishes that a case does not fall within its jurisdiction, the mechanism for transferring the case according to jurisdiction applies.

Issues concerning disputes over jurisdiction are regulated by Article 318 of the CPC.

Disputes between courts are resolved by a higher court, whose decision is final.

Article 318 of the CPC of the Republic of Kazakhstan — Resolution of Disputes over Jurisdiction

19. State Duty

In criminal proceedings, the victim does not pay state duty for the exercise of criminal prosecution.

If the victim files a civil claim within the framework of criminal proceedings, the special rule under Article 167 of the CPC applies.

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

This is of practical importance when recovering:

• medical treatment expenses;
• expenses for psychological assistance;
• lost earnings;
• property damage;
• moral damages;
• representative's fees;
• other expenses directly related to the crime.

Article 167 of the CPC of the Republic of Kazakhstan — Filing a Civil Claim

20. Civil Claim in Criminal Proceedings

Article 166 of the CPC provides for the possibility of considering claims for compensation in criminal proceedings in respect of:

• property damage;
• moral damages;
• medical treatment expenses;
• funeral expenses;
• insurance payments;
• allowances and pensions in cases provided for by law;
• expenses related to participation in criminal proceedings;
• representation expenses.

Chapter 20 of the CPC of the Republic of Kazakhstan — Civil Claim in Criminal Proceedings

21. Time Limit for Filing a Civil Claim

Here, it is particularly important to clearly distinguish between:

the limitation period for criminal prosecution

and

the procedural time limit for filing a civil claim in criminal proceedings.

Under Article 167 of the CPC, a civil claim may be filed from the commencement of pre-trial investigation until the end of the judicial investigation.

Consequently, within the framework of criminal proceedings, a special procedural "window" for filing a civil claim is established.

Article 167 of the CPC of the Republic of Kazakhstan — Filing a Civil Claim

22. Restoration of the Time Limit for Filing a Claim

An important qualification must be made here.

The rules of the Civil Procedure Code on restoration of procedural time limits cannot automatically be applied to the special time limit under Article 167 of the CPC.

If a civil claim was not filed before the end of the judicial investigation, it is necessary to analyze:

1. the reasons for missing the deadline;
2. the moment when the victim became aware of the damage;
3. whether the victim was duly recognized as a victim;
4. whether the right to file a claim was explained to them;
5. whether there was an objective impossibility of determining the amount of damage;
6. whether the criminal case was terminated;
7. whether a judgment was rendered;
8. whether the claim was left without consideration.

The Regulatory Resolution of the Supreme Court concerning civil claims emphasizes the need to apply, first and foremost, the rules of criminal procedure and, in the absence of regulation, the rules of civil procedure to the extent that they do not contradict the CPC.

Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan "On Consideration of a Civil Claim in Criminal Proceedings"

Therefore, in practical terms, where the time limit for filing a claim has been missed, the following alternatives must be considered:

filing a claim within the framework of criminal proceedings

or

subsequently filing an independent civil claim, provided that the procedural circumstances allow this.

23. Moral Damages

For a victim of torture, moral damages may have independent significance.

They may be expressed in:

• physical suffering;
• fear;
• humiliation;
• psychological trauma;
• loss of a sense of security;
• distress associated with unlawful deprivation of liberty;
• long-term consequences of the crime.

Article 71 of the CPC expressly provides for the victim's right to file a claim for compensation for moral damages in criminal proceedings.

If such a claim was not filed or was left without consideration, the victim has the right to apply under the civil procedure.

Article 71 of the CPC of the Republic of Kazakhstan — Victim

24. Parties Involved in Criminal Proceedings

The following persons may participate in the case:

Prosecution side

• prosecutor;
• criminal prosecution authority;
• investigator;
• inquiry officer;
• public prosecutor;
• victim;
• private prosecutor — where applicable;
• civil claimant;
• representatives of the victim;
• representatives of the civil claimant.

Defence side

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

Depending on the circumstances, the following persons may also participate:

• expert;
• specialist;
• interpreter;
• witness;
• legal representative;
• psychologist;
• teacher;
• other participants предусмотренные by the CPC.

25. Victim

Article 71 of the CPC defines a victim as a person in respect of whom there are grounds to believe that they have directly suffered moral, physical, or property damage as a result of a criminal offence.

A person must be immediately recognized as a victim where the grounds предусмотренные by law are present.

The victim has the right to:

• give testimony;
• submit evidence;
• file motions;
• have a representative;
• familiarize themselves with the case materials;
• participate in court proceedings;
• speak during closing arguments;
• appeal procedural decisions;
• file a civil claim;
• demand compensation for damage;
• request security measures.

Rights of the Victim — Article 71 of the CPC of the Republic of Kazakhstan

26. Specific Features of a Hostage as a Victim

In a hostage-taking case, the victim is simultaneously the direct object of an infringement upon personal liberty and security.

At the same time, the victim may have:

1. the status of a victim under Article 261 of the Criminal Code;
2. the status of a victim under Article 110 of the Criminal Code;
3. the right to file a civil claim;
4. the right to security measures;
5. the right to compensation in cases предусмотренных by law.

If the crime results in particularly grave consequences, the mechanism for compensating victims must also be taken into account.

27. Representative of the Victim

In torture cases, a representative is particularly important where the victim:

• is in a severe psychological condition;
• is a minor;
• fears the accused;
• is located outside the region;
• has health-related limitations;
• is unable to effectively exercise their procedural rights independently.

A representative has the right to exercise the procedural powers предусмотренные by the CPC in the interests of the victim.

28. Evidence and Proof

In cases of this category, the evidentiary basis must meet the requirements of relevance, admissibility, and reliability.

The following are of particular importance:

1. Testimony of the Victim

It is necessary to establish:

• how the victim was deprived of liberty;
• who kidnapped the victim;
• who held the victim;
• who committed the violent acts;
• what specific acts were committed;
• how long they continued;
• what the nature of the pain was;
• what demands were made;
• whether the accused was aware of the victim's status.

2. Witness Testimony

The testimony of the following witnesses is of particular importance:

• those who witnessed the victim's release;
• those who discovered the place of confinement;
• those involved in negotiations;
• those who received the demands;
• those who provided medical assistance;
• those who witnessed the violence.

3. Medical Documentation

The following must be examined:

• medical certificates;
• medical histories;
• conclusions of specialists;
• examination results;
• information concerning the victim's psychological condition;
• information concerning treatment.

29. Forensic Medical Examination

An examination may be necessary to determine:

• the existence of bodily injuries;
• the mechanism by which they were inflicted;
• their age;
• their nature;
• the degree of severity;
• the possibility that the injuries could have been caused in the manner described.

It is particularly important that the absence of significant bodily injuries does not, in itself, exclude the existence of mental suffering.

30. Psychological and Forensic Psychiatric Examination

Where there is a dispute concerning psychological consequences, the following may be relevant:

• psychological assessment;
• psychiatric examination;
• comprehensive psychological and psychiatric examination.

Such an examination may assess:

• the existence of psychological trauma;
• the consequences of prolonged violence;
• the emotional state;
• the ability to perceive events correctly;
• the specific features of the person's mental condition.

However, an expert must not substitute the court in determining the legal qualification.

 31. Electronic Evidence

For the offences under consideration, the following are of particular importance:

• recordings of telephone conversations;
• correspondence;
• messengers;
• photographs;
• video recordings;
• geolocation data;
• CCTV footage;
• information concerning the movement of a vehicle;
• data from mobile network operators;
• electronic payments;
• threatening messages.

It is necessary to establish the source from which such data was obtained and whether the procedural requirements were complied with.

32. Inadmissible Evidence

Article 112 of the CPC is of particular importance.

Factual data must be recognised as inadmissible if it was obtained in violation of the requirements of the CPC and such violation affected or could have affected the reliability of the data obtained.

The grounds expressly specified include obtaining data:

• through the use of torture;
• violence;
• threats;
• deception;
• other unlawful acts;
• cruel treatment.

Article 112 of the CPC of the Republic of Kazakhstan — Inadmissible Evidence

This is particularly important in cases involving torture.

For example, the accused's confessional testimony obtained as a result of violence cannot be used to legitimise the evidentiary structure of the prosecution.

33. Proving the Circumstances of Kidnapping

For the application of subparagraph 1) of part 2 of Article 110, it is necessary to establish the fact that the victim was in the relevant situation.

Accordingly, the following must be proven:

• the fact of seizure;
• the method of seizure;
• the fact of movement — where kidnapping is involved;
• unlawful detention;
• absence of voluntary consent;
• the place of detention;
• the duration of detention;
• the persons who exercised control over the victim;
• the accused's awareness of these circumstances.

34. Proving Hostage Status

For the purposes of Article 261, it is additionally necessary to establish the specific purpose.

It must be proven that the seizure or detention was used as a means of compelling another person, organisation or State to take certain action.

Therefore, the investigation must examine:

• demands;
• the addressees of the demands;
• messages;
• telephone calls;
• negotiations;
• conditions for release;
• threats against the victim;
• actions taken after the demands were received.

35. Proving Intent to Inflict Torture

This is one of the most difficult elements.

The mere fact that several blows were inflicted does not always prove the purpose of causing suffering.

It is necessary to examine the totality of the circumstances:

• duration of the violence;
• repetition;
• method;
• intensity;
• the victim's reaction;
• statements made by the accused;
• cessation or continuation of the violence;
• circumstances of detention;
• the perpetrator's attitude towards the victim's suffering.

36. Measures of Procedural Compulsion

In criminal proceedings, the measures of procedural compulsion provided for by the CPC may be applied.

These include, in particular:

• detention;
• preventive measures;
• compulsory appearance;
• monetary penalties;
• temporary suspension from office;
• seizure of property and other measures provided for by the CPC.

37. Detention of a Suspect

Article 128 of the CPC regulates the grounds for detention.

A person may be detained, in particular, where:

• caught committing a criminal offence or immediately thereafter;
• eyewitnesses directly identify that person;
• obvious traces of a criminal offence are found on the person, their clothing, among their belongings or at their place of residence;
• reliable data from operational-search activities, counterintelligence activities or covert investigative actions are available.

Under the specified provision, the general period of detention may not exceed 72 hours.

Article 128 of the CPC of the Republic of Kazakhstan — Grounds for Detention

38. Preventive Measures

Article 136 of the CPC provides for the application of a preventive measure where there are sufficient grounds to believe that the suspect or accused:

• will abscond;
• will obstruct an objective investigation;
• will continue criminal activity;
• will otherwise create risks предусмотренные by law;
• or where the measure is necessary to ensure enforcement of the judgment.

When selecting a preventive measure, the possibility of applying a less restrictive measure must be considered.

Article 136 of the CPC of the Republic of Kazakhstan — Grounds for Applying Preventive Measures

At the same time, Article 136 specifically provides for the possibility of detention on the grounds of the gravity and/or legal classification of the offence, including under Article 110 of the Criminal Code.

39. Judicial Authorisation of Detention

Issues concerning the authorisation of preventive measures are regulated by the CPC and the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan.

The Supreme Court explains the procedure for judicial oversight of the application of detention, house arrest and bail.

Regulatory Resolution No. 1 of the Supreme Court of the Republic of Kazakhstan dated 24 January 2020 — Authorisation of Preventive Measures

40. Victim Safety Measures

In cases involving kidnapping, hostage-taking and torture, the issue of the victim's safety may be of fundamental importance.

The victim has the right to submit applications:

• for the application of safety measures;
• for the non-disclosure of circumstances relating to their private life;
• for a prohibition on approaching them.

This right is expressly provided for in Article 71 of the CPC.

This is particularly relevant if the accused:

• knows the victim's address;
• has previously threatened the victim;
• has the ability to exert influence over the victim's relatives;
• continues to control property;
• is a member of a group.

41. Reconciliation Procedures

As a general rule, Article 68 of the Criminal Code regulates exemption from criminal liability in connection with reconciliation.

Part One provides for such a possibility in respect of criminal misdemeanours and minor or medium-gravity crimes not involving the death of a person, provided that the parties have reconciled and the harm caused has been remedied.

However, Part Four of Article 68 establishes exceptions.

In particular, the institution under Article 68 does not apply to torture, offences involving violence against minors, terrorist and extremist offences, offences committed as part of a criminal group, and a number of other categories.

Article 68 of the Criminal Code of the Republic of Kazakhstan — Exemption in Connection with Reconciliation

42. Can Torture under Article 110 Be Terminated on the Basis of Reconciliation?

It is necessary to take into account the applicable version of the legislation and the specific legal classification.

Torture under Part Two of Article 110 is an offence carrying a sanction of up to seven years' imprisonment and belongs to a more serious category.

Consequently, the ordinary mechanism under Part One of Article 68 does not directly apply to such a qualified offence.

In addition, Article 68 contains specific exceptions that must be examined separately.

Where Articles 125 or 261 are also applicable, the issue of reconciliation must be assessed in relation to the entire body of charges.

It is particularly important that offences involving hostage-taking have an independent protected legal interest and a specific statutory structure.

43. Regulatory Resolution of the Supreme Court on Reconciliation

The Supreme Court indicates that reparation of harm must be genuine and must precede reconciliation and the adoption of a decision to exempt a person from criminal liability.

The existence of a dispute between the parties concerning the amount of compensation for harm may indicate that reconciliation has not actually taken place.

Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan on the Application of Article 68 of the Criminal Code

44. Practical Example No. 1 — Kidnapping Followed by Torture

A and B kidnapped C.

C was moved to another premises and tied up.

For several hours, A inflicted numerous blows on C, caused pain, humiliated him and continued the violence even after the victim asked for the actions to stop.

At the same time, A knew that C had been kidnapped.

In this case, the following legal classification may be possible:

Article 125 of the Criminal Code — Kidnapping;

Subparagraph 1) of Part 2 of Article 110 of the Criminal Code — Torture of a person kidnapped by criminals.

It is necessary to establish the independence of the acts constituting each offence.

45. Practical Example No. 2 — Hostage-Taking and Torture

A group of persons seized C as a hostage and demanded that the victim's employer transfer funds.

During the negotiations, the victim was beaten, deprived of sleep and subjected to degrading treatment.

In this case, the following classification may be possible:

Article 261 of the Criminal Code — Hostage-Taking;

Subparagraph 1) of Part 2 of Article 110 of the Criminal Code — Torture of a hostage.

The key issue is establishing an independent intent to inflict suffering.

46. Practical Example No. 3 — Violence, but Not Torture

A person kidnapped the victim and struck the victim once while moving them.

This fact alone does not yet mean that torture has occurred.

It is necessary to determine:

• the nature of the blow;
• its purpose;
• its consequences;
• whether particular cruelty was involved;
• whether humiliation or abuse occurred;
• whether the act was directed at causing suffering.

In the absence of the necessary elements of Article 110, classification exclusively under Article 125 or another applicable provision may be possible.

47. Practical Example No. 4 — Grievous Bodily Harm

A kidnapped victim was subjected to a prolonged beating and sustained grievous bodily harm.

In this case, Article 110 requires particularly careful differentiation.

Since Part One of Article 110 expressly excludes cases involving the infliction of grievous or medium-gravity bodily harm, the investigation and the court must consider Article 106 of the Criminal Code.

Depending on the intent and circumstances, a concurrence of offences may arise:

Article 125 + Article 106 of the Criminal Code.

48. Supreme Court Practice on Combating Torture and Violence

The key legal instrument is Regulatory Resolution No. 7 of the Supreme Court of the Republic of Kazakhstan dated 28 December 2009.

It concerns the application of criminal and criminal procedural legislation in matters relating to:

• personal liberty;
• dignity;
• torture;
• violence;
• cruel treatment;
• treatment that degrades human dignity.

Paragraph 16-1 is particularly important.

The Supreme Court explains the need to distinguish Article 146 of the Criminal Code from subparagraph 4) of Part 2 of Article 110 of the Criminal Code in its former wording.

Where all the elements of torture involving a special subject are present, Article 146 applies, and additional classification under the relevant subparagraph of Article 110 is not required.

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

At the same time, it should be taken into account that subparagraph 4) of Part 2 of Article 110 was subsequently excluded by a law adopted in 2023. Therefore, historical judicial acts must be applied taking into account the version of the criminal law that was in force at the time the act was committed.

49. Supreme Court Practice: Evidence of Violence

For cases in this category, the Supreme Court's explanations concerning the inadmissibility of evidence obtained through torture and unlawful violence are of fundamental importance.

This is consistent with Article 112 of the CPC.

Consequently, if the prosecution is based on a confession obtained under conditions of unlawful coercion, the defence has the right to raise the following issues:

1. recognition of the evidence as inadmissible;
2. exclusion of such evidence from the body of evidence;
3. examination of the circumstances in which the confession was obtained;
4. holding the culpable officials liable.

50. Judicial Practice under Article 125 and Its Significance for Article 110

The Supreme Court's Regulatory Resolution on theft does not directly regulate Article 110; however, its approaches to the concept of violence are relevant when classifying related offences.

The Supreme Court distinguishes between various forms of violence and draws attention to the nature of the impact on the victim.

When investigating kidnapping, it is necessary to separately establish the circumstances of the violence, since they may affect the legal classification of the kidnapping itself.

Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan on Judicial Practice in Cases of Theft

51. First-Instance Court Practice

Based on publicly available indexed sources, a sufficient number of published judicial acts has not been identified in which the qualifying element under subparagraph 1) of Part 2 of Article 110 of the Criminal Code — “a person who has been kidnapped or taken hostage” — was the sole or central subject of legal analysis.

Therefore, it is impermissible to attribute non-existent conclusions to courts or to cite unverified criminal case numbers.

However, the structure of criminal legislation and the published explanations of the Supreme Court make it possible to identify the recurring issues that must be resolved by courts of first instance:

1. was the victim actually kidnapped or taken hostage;
2. was the accused aware of this circumstance;
3. did torture actually take place;
4. was there an intention to cause suffering;
5. was there particular cruelty or humiliation;
6. was medium-gravity or grievous harm caused;
7. is additional classification under Article 125 or 261 required;
8. is there an actual concurrence of offences;
9. is the evidence admissible;
10. is the civil claim justified.

52. Appellate Practice

In appellate proceedings in this category of cases, the following errors by the court of first instance may be significant:

Error 1

The court found that torture had occurred solely on the basis of the number of blows.

Error 2

The court did not establish the purpose of causing suffering.

Error 3

The court did not establish that the accused knew that the victim had been kidnapped.

Error 4

The court failed to distinguish between Articles 125 and 110.

Error 5

The court failed to assess the issue of concurrence between Articles 261 and 110.

Error 6

The court relied on inadmissible evidence as the basis for its judgment.

Error 7

The court unjustifiably refused to consider the victim's civil claim.

53. What the Appellate Court Must Examine

The appellate court must examine:

• legality;
• validity;
• the reasoning of the judicial act;
• the correctness of establishing the factual circumstances;
• the correctness of the legal classification;
• compliance with procedural rights;
• admissibility of evidence;
• legality of the determination of the civil claim;
• legality of the sentence imposed.

Particular attention must be paid to whether the entire set of objective and subjective elements of the qualified offence has been proven.

54. Judicial Practice and the Prohibition on Broad Interpretation of Criminal Law

In criminal law, the absence of an element cannot be remedied by an assumption.

If the prosecution states:

“The victim was a hostage; therefore, torture took place”,

such reasoning is insufficient.

The independent elements of torture must be proven.

Similarly:

“The victim was beaten, which means that the accused committed torture.”

This is also insufficient.

The purpose of causing suffering and the corresponding method of conduct must be proven.

55. International Standards

The legal classification must be considered in the context of the international obligations of the Republic of Kazakhstan.

The following are of particular importance:

International Covenant on Civil and Political Rights

Article 7 prohibits torture and cruel, inhuman or degrading treatment or punishment.

United Nations Convention against Torture

Kazakhstan acceded to the Convention against Torture.

The Convention establishes international obligations to prevent torture and ensure effective investigation of the relevant acts.

Convention against Torture — Act on Kazakhstan's Accession

Optional Protocol to the Convention against Torture

Kazakhstan ratified the Optional Protocol.

It provides for a system of preventing torture through visits to places where persons deprived of their liberty are held.

Law of the Republic of Kazakhstan on Ratification of the Optional Protocol against Torture

56. International Convention against the Taking of Hostages

Kazakhstan acceded to the 1979 International Convention against the Taking of Hostages.

The Convention proceeds from the understanding that hostage-taking is an offence causing serious concern to the international community and provides for international cooperation in preventing and prosecuting such acts.

Act on Kazakhstan's Accession to the International Convention against the Taking of Hostages

Therefore, Article 261 of the Criminal Code must also be considered in the context of Kazakhstan's international obligations to combat hostage-taking.

57. International Law and Evidence

International standards have direct practical significance when assessing:

• confessional testimony;
• allegations of torture;
• medical documents;
• conditions of detention;
• treatment of the victim;
• treatment of the suspect;
• effectiveness of the investigation.

The exclusion of evidence obtained through torture or other unlawful methods is particularly important.

58. Hierarchy of Regulatory Legal Acts

For the proper application of legislation, it is necessary to take into account the Law of the Republic of Kazakhstan “On Legal Acts”.

Article 10 establishes the hierarchy of regulatory legal acts.

The Constitution has the highest legal force.

The following are placed thereafter, in particular:

1. constitutional laws;
2. codes;
3. laws;
4. regulatory resolutions of Parliament;
5. regulatory decrees of the President;
6. resolutions of the Government;
7. regulatory orders of ministers;
8. other regulatory acts.

At the same time, regulatory resolutions of the Constitutional Court and the Supreme Court are outside the general hierarchy established by Article 10.

Article 10 of the Law of the Republic of Kazakhstan “On Legal Acts”

A subordinate regulatory legal act must not contradict a higher-ranking regulatory legal act.

59. Main Regulatory Acts Subject to Application

For the category of cases under consideration, the main sources are:

Constitution of the Republic of Kazakhstan

Primarily Article 17.

Criminal Code of the Republic of Kazakhstan

Key provisions:

• Article 15 — age of criminal liability;
• Article 68 — reconciliation;
• Article 71 — limitation periods;
• Article 106 — grievous bodily harm;
• Article 107 — medium-gravity bodily harm;
• Article 110 — torture;
• Article 125 — kidnapping;
• Article 261 — hostage-taking;
• other provisions of the Special Part, depending on the facts of the case.

CPC of the Republic of Kazakhstan

In particular:

• Article 23 — adversarial proceedings and equality of the parties;
• Article 71 — victim;
• Article 112 — inadmissibility of evidence;
• Article 128 — detention;
• Article 136 — preventive measures;
• provisions on judicial oversight;
• Articles 166–172 — civil claim;
• Article 306 and subsequent provisions — jurisdiction;
• provisions on appeal and cassation.

Law “On Legal Acts”

For determining the legal force and relationship between regulatory legal acts.

Legislation on Mediation

Applies to the extent that mediation is permitted for the specific category of criminal case.

International Treaties

In particular:

• International Covenant on Civil and Political Rights;
• United Nations Convention against Torture;
• Optional Protocol to the Convention against Torture;
• International Convention against the Taking of Hostages.

60. Specifics of Limitation Periods in Criminal Cases

Article 71 of the Criminal Code establishes limitation periods depending on the category of the criminal offence.

The current version provides for:

• 1 year — for a criminal misdemeanour;
• 2 years — for a minor-gravity crime;
• 5 years — for a medium-gravity crime;
• 10 years — for a serious crime;
• 15 years — for an especially serious crime.

The period is calculated from the date on which the criminal offence was committed until the moment the judgment enters into legal force, taking into account the exceptions provided for in the Article.

Article 71 of the Criminal Code of the Republic of Kazakhstan — Limitation Period

61. The Limitation Period and a Civil Claim Are Not the Same Thing

This is a fundamentally important point for a lawyer.

The limitation period for criminal prosecution under Article 71 of the Criminal Code cannot automatically be treated as the limitation period for a civil claim.

A civil claim in criminal proceedings is governed by Articles 166–172 of the CPC.

Therefore, it is necessary to analyse separately:

A. the period of criminal liability;

B. the time limit for filing a civil claim in criminal proceedings;

C. the limitation period for an independent civil claim.

62. Legal Costs

If the victim has incurred expenses:

• for a lawyer;
• for a representative;
• for treatment;
• for transport;
• for participation in procedural actions;
• for other necessary expenses,

it is necessary to examine the possibility of recovering them as damages or procedural costs in accordance with the CPC.

Article 166 expressly includes expenses incurred in connection with participation in the proceedings and representation expenses within the scope of a possible civil claim.

63. Securing a Civil Claim

In cases involving kidnapping and torture, there is a risk that the accused may conceal property.

Therefore, the victim has the right to raise the issue of securing the civil claim.

The following applications must be submitted in a timely manner:

• for seizure of property;
• for preservation of property;
• for preventing its alienation;
• for taking other interim measures provided for by law.

64. Practical Position of the Defence

For the defence of an accused under subparagraph 1) of Part 2 of Article 110 of the Criminal Code, it is necessary to examine:

First Block — The Event

Did torture actually occur at all?

Second Block — The Objective Element

What specific actions were committed?

Third Block — Consequences

Was medium-gravity or grievous bodily harm inflicted?

Fourth Block — The Subjective Element

Was there an intention to cause suffering?

Fifth Block — The Qualifying Element

Did the accused know that the person was kidnapped or held hostage?

Sixth Block — Concurrence

Are there independent offences under Articles 125 or 261?

Seventh Block — Evidence

Is all the evidence admissible?

Eighth Block — Procedure

Were the rights of the suspect and accused observed?

65. Practical Position of the Victim

It is advisable for the victim's representative to seek:

1. timely recognition of the person as a victim;
2. recording of all bodily injuries;
3. a medical examination;
4. a psychological examination;
5. the conduct of necessary expert examinations;
6. the inclusion of correspondence and video recordings in the case file;
7. identification of all participants in the offence;
8. establishment of the duration of detention;
9. establishment of motives and demands;
10. correct legal classification;
11. ensuring safety;
12. seizure of property;
13. filing a civil claim;
14. recovery of moral damages;
15. recovery of expenses for the representative;
16. obtaining copies of procedural decisions.

66. Typical Investigation Errors

Error 1

Classifying any violence as torture.

Error 2

Failure to analyse the purpose of causing suffering.

Error 3

Failure to analyse mental suffering.

Error 4

Failure to establish the accused's awareness of the victim's status.

Error 5

Incorrect differentiation between kidnapping and hostage-taking.

Error 6

Ignoring the independent offence of causing grievous bodily harm.

Error 7

Use of inadmissible evidence.

Error 8

Improper recognition of the person as a victim.

Error 9

Failure to secure the civil claim.

Error 10

Failure to explain the victim's rights.

67. Typical Court Errors

The court should avoid:

• a formalistic approach to evidence;
• automatically concluding that torture has occurred;
• replacing proof of a qualifying element with an assumption;
• ignoring the victim's testimony;
• uncritically accepting the accused's confession;
• failure to analyse medical evidence;
• failure to analyse psychological harm;
• incorrect classification of the concurrence of offences;
• unjustified refusal to grant a civil claim.

68. Key Legal Formula for Classification

For the classification of acts under subparagraph 1) of Part 2 of Article 110 of the Criminal Code, the following sequence must be proven:

Victim → unlawfully deprived of liberty as a kidnapped person or hostage → accused is aware of this → accused commits violent acts → the acts cause physical or mental suffering → the acts are characterised by particular cruelty/abuse → there is an intention to cause suffering → there is no medium-gravity or grievous harm that brings the act within another offence → the qualifying circumstance is proven.

It is precisely this combination of elements that ensures a legally sustainable classification.

69. Final Classification Table

70. Final Conclusion

Subparagraph 1) of Part Two of Article 110 of the Criminal Code of the Republic of Kazakhstan constitutes a qualified offence of torture, in which the increased criminal-law assessment is associated with the victim's special status — the victim is already under the unlawful control of the offender as a result of kidnapping or seizure as a hostage.

The key point is that:

kidnapping or hostage-taking does not, in itself, automatically constitute torture.

For the purposes of Article 110, the following must additionally be proven:

• physical or mental suffering;
• violent acts;
• particular cruelty or abuse;
• the purpose of causing suffering;
• absence of consequences that would bring the act within the offence of intentional infliction of medium-gravity or grievous bodily harm;
• the perpetrator's awareness of the victim's status as a kidnapped person or hostage.

Where the independent elements of the relevant offences are present, a concurrence of offences may be applied:

Article 125 + subparagraph 1) of Part 2 of Article 110 of the Criminal Code

or

Article 261 + subparagraph 1) of Part 2 of Article 110 of the Criminal Code.

From a procedural standpoint, a case classified solely under subparagraph 1) of Part 2 of Article 110 generally falls within the jurisdiction of a district or equivalent court, unless there is a special ground for different jurisdiction. Where there is a concurrence with an especially serious crime, jurisdiction is determined taking into account the rules of Chapter 40 of the CPC.

A civil claim may be filed from the commencement of the pre-trial investigation until the end of the judicial investigation; when a civil claim is filed in criminal proceedings, the victim is exempt from payment of the state fee.

Article 167 of the CPC of the Republic of Kazakhstan on zakonpravo.kz

Reconciliation must be assessed not only under Article 110, but also in relation to the entire body of charges and the restrictions under Article 68 of the Criminal Code. Where an offence falls within the exceptions provided for in Part Four of Article 68, exemption from criminal liability in connection with reconciliation does not apply.

Medical records, forensic medical and psychological examinations, testimony of the victim and witnesses, camera recordings, electronic correspondence, movement records, negotiation data and other objective sources are of particular evidentiary significance.

Finally, the constitutional basis of this provision is Article 17 of the Constitution, which establishes the inviolability of human dignity and an absolute prohibition on torture, violence and other cruel or degrading treatment. The international legal foundation consists primarily of the United Nations Convention against Torture, its Optional Protocol and the International Convention against the Taking of Hostages.

For legal practice, the most significant issue is not the formal existence of the fact of kidnapping or hostage-taking, but proof of the independent offence of torture and each element of the qualifying circumstance, since the failure to prove even one of the mandatory elements may result in a change in the criminal-law classification.

Practically useful set of regulatory sources for legal practice on zakonpravo.kz: Article 110 of the Criminal Code, Articles 125 and 261 of the Criminal Code, Article 68 of the Criminal Code, Article 71 of the Criminal Code, Articles 71 and 112 of the CPC, Articles 136 and 167 of the CPC, Chapter 40 of the CPC, as well as Regulatory Resolution No. 7 of the Supreme Court of the Republic of Kazakhstan dated 28 December 2009 and the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan concerning Article 68 of the Criminal Code. (Law and Legal Practice)

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