Article 101. Murder Committed in a State of Affect. Commentary on the Article of the Criminal Code of the Republic of Kazakhstan

• 1. Murder committed in a state of sudden intense emotional disturbance (affect) caused by violence, abuse or grave insult, or other unlawful or immoral acts (omissions) of the victim, as well as by a prolonged psychotraumatic situation arising in connection with the systematic unlawful or immoral conduct of the victim, —
• shall be punishable by restriction of liberty for a term of up to three years or deprivation of liberty for the same term.
• 2. Murder of two or more persons committed under the circumstances specified in Part One of this Article —
• shall be punishable by deprivation of liberty for a term of up to five years.

The public danger of this crime is expressed in the violation of the absolute human right to life, which belongs to every person from birth.

Murder provided for by this Article, just like murder provided for by Article 100 of the Criminal Code, is classified as a privileged form of murder. The grounds for mitigating punishment for such murder are associated, on the one hand, with the special psychological state of the perpetrator and, on the other hand, with the fact that this state of the perpetrator is caused by the unlawful conduct of the victim.

The object of the crime is the life of the victim.

The objective aspect — murder committed in a state of sudden intense emotional disturbance (affect) caused by violence, abuse or grave insult, or other unlawful or immoral acts (omissions) of the victim, as well as by a prolonged psychotraumatic situation arising in connection with the systematic unlawful or immoral conduct of the victim.

Affect is a special psychological state of a person characterized by its short duration and rapid development, intense and profound emotional experience, vivid external manifestation, narrowing of consciousness and reduced control over one's actions.

Intense emotional disturbance is not considered a mental disorder and is not regarded as a medical criterion of legal insanity. Therefore, it is sometimes referred to as physiological affect, as distinct from pathological affect, in which intense emotional distress results in a complete loss of consciousness, thereby excluding criminal responsibility on the grounds of insanity. Physiological affect does not deprive a person of the ability to understand their actions, but significantly impairs self-control and the critical assessment of decisions being made.

Physiological affect is characterized by an emotional outburst of high intensity that takes the person's psyche out of its normal state, weakens conscious intellectual activity, leads to excessive intensity of internal psychological processes and their violent external manifestation, and causes actions to be performed without due awareness. The external manifestations of affect vary depending on numerous circumstances, including the individual psychological characteristics of the person. Therefore, a conclusion as to whether a particular individual was or was not in a state of physiological affect in a specific situation can only be made through a comprehensive psychological and psychiatric examination.

In this regard, a number of questions must be put to the experts: whether the perpetrator was in a state of affect at the time the crime was committed, and what its temporal boundaries were, that is, when it began and when it ended.

The Criminal Code Article under consideration concerns physiological affect, which must be distinguished from pathological affect, which is regarded as a type of temporary mental disorder and entails recognition of the person as legally insane (Article 16 of the Criminal Code).

It should be noted that the law (Article 101 of the Criminal Code) refers not simply to a state of excitement, but to intense emotional disturbance.

For physiological affect to be recognized as a circumstance mitigating liability for murder, it must have arisen suddenly as a reaction to the unlawful conduct of the victim. The suddenness of intense emotional disturbance should be understood as its unexpected occurrence for the perpetrator themselves.

A person's state of intense emotional disturbance may arise as a result of various circumstances. However, criminal law recognizes a state of physiological affect as a circumstance mitigating criminal liability only when it has been caused by the unlawful conduct of the victim. The disposition of Article 101 of the Criminal Code establishes a list of circumstances, at least one of which must be established for this Article to apply.

First and foremost, the Article refers to violence committed by the victim (strikes, beatings, unlawful deprivation of liberty, infliction of bodily harm of varying degrees of severity, threats to the life of not only the perpetrator but also their relatives and close persons). Murder committed in a state of intense emotional disturbance caused by lawful actions directed against the perpetrator cannot be classified under Article 101 of the Criminal Code. For example, when a police officer detaining a criminal is killed by one of the persons present.

If a person, while committing murder in a state of affect, exercises their right to necessary self-defence, they are either exempted from criminal liability pursuant to Article 32 of the Criminal Code or held liable for murder committed in excess of the limits of necessary self-defence (Article 102 of the Criminal Code). Since the law does not specify the type of violence, it should be assumed that affect may also be caused by psychological violence.

The practice and doctrine of criminal law proceed from the premise that violence must be unlawful in nature. If the violent acts were lawfully applied by the victim, Article 101 of the Criminal Code cannot be applied.

Abuse involves repeated acts of violence by the victim, expressed in the crude and cynical humiliation of the honour and dignity of the perpetrator or their close persons, ridicule of their ideals or shortcomings, disclosure of information concerning the intimate aspects of their lives, and other similar conduct.

Grave insult is a subjective evaluative category based on the norms of morality and ethics (gross humiliation of honour and dignity, insult to national or religious feelings, desecration of love, and other similar acts).

Other unlawful or immoral acts (omissions) of the victim include cases of causing property damage, violating the right to use property, acts of arbitrary self-help, refusal to repay a debt, marital infidelity, and so forth.

A prolonged psychotraumatic situation caused by the systematic unlawful or immoral conduct of the victim may be expressed in the victim committing a series of acts that create unbearable living or working conditions for the perpetrator, as a result of which the perpetrator's "patience reaches its limit", they are unable to restrain themselves and commit murder. At the same time, there must be no time gap between the murder and the provocative conduct of the victim. An exception is made for certain cases involving a prolonged psychotraumatic situation arising in connection with the systematic unlawful or immoral conduct of the victim, where a state of affect may occur despite a time gap between the murder and the last act of conduct by the victim. For example, when an alcoholic father systematically abuses his wife and children, this is recognized in practice as a prolonged psychotraumatic situation that causes a state of physiological affect in one of the family members. If the intention to commit murder, which suddenly arose as a result of physiological affect, was not carried out immediately but was implemented after a lengthy period of time, Articles 101 or 111 of the Criminal Code do not apply, because in such cases the perpetrator acts not in a state of affect but out of motives of revenge.

Likewise, the elements of this crime are absent when the murder committed in a state of affect was planned in advance by the perpetrator and that intention was carried out by taking advantage of the situation that had arisen.

Where the act simultaneously contains the elements of murder provided for by Article 101 of the Criminal Code and murder under aggravating circumstances (Part 2 of Article 99 of the Criminal Code), the provision of Article 101 of the Criminal Code shall apply, since, in the event of competition between aggravating and mitigating circumstances, preference is given to the latter.

Paragraph 26 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan "On the Qualification of Certain Criminal Offences Against Human Life and Health" emphasizes:

"For an act to be qualified under Article 101 of the Criminal Code, it is essential that the perpetrator was in a state of physiological affect, that such state arose suddenly and that it was connected with the actions of the victim.

Liability under Article 101 of the Criminal Code arises only where the affect was caused by violence, abuse or grave insult on the part of the victim, or by other unlawful or immoral acts (omissions) of the victim (causing the death of or harm to the health of close persons, their rape, driving them to suicide, arbitrary self-help, abuse of official position, and so forth), as well as by a prolonged psychotraumatic situation in which intense emotional disturbance arose as a consequence of the systematic unlawful or immoral conduct of the victim, resulting from their repeated unlawful acts (systematic beatings, torture), the last of which became the cause of the murder.

In this regard, it is irrelevant whether the said unlawful acts were committed against the perpetrator themselves or against persons close to them."

To determine whether the perpetrator was in a state of affect and for how long, a forensic psychiatric examination must be conducted. At the same time, it should be borne in mind that an affective state is a short-term intense emotion that occupies a dominant position in the perpetrator's consciousness while preserving their ability to exercise self-control and their capacity to act in response to the circumstance that caused the affect. A lengthy period of time between the victim's actions and the perpetrator's responsive actions precludes the application of the aforementioned Article.

The elements of the crime are constructed as a material offence. The crime is considered completed from the moment biological death occurs.

The subjective aspect of the crime under consideration is characterized by guilt in the form of suddenly arising direct or indirect intent. The motive for such murder is most often revenge or jealousy, although other motives may also be present.

Negligently causing death in a state of affect entails liability under Article 104 of the Criminal Code; in this case, the state of intense emotional disturbance is recognized as a circumstance mitigating punishment.

The subject is a sane natural person who has reached the age of 16.

Part 2 of Article 101 of the Criminal Code provides for a qualified form of this crime — the murder of two or more persons committed in a state of affect. The perpetrator deprives several victims of their lives simultaneously or within a short period of time, where those victims were involved in causing the perpetrator's state of intense emotional disturbance.

Under Part 2 of Article 101 of the Criminal Code, the causing of death to two or more victims is classified accordingly if the unlawful or immoral acts that served as the grounds for the affect were committed by each of them. The murder of one person in a state of affect and an attempt on the life of another person in the same state shall be qualified under Part 2 of Article 101, with reference to Part 3 of Article 24 of the Criminal Code.

In a situation involving the murder of two or more persons, where the state of intense emotional disturbance was caused by the conduct of only some of those persons, liability arises under the aggregate of crimes provided for by the relevant parts of Articles 101 and 99 of the Criminal Code.

The intentional causing of death to one victim in a state of intense emotional disturbance and the negligent causing of death to another person whose conduct was not connected with the emergence of the affect shall be qualified under the aggregate of crimes provided for by Articles 101 and 104 of the Criminal Code.

The murder committed by an official in a state of affect while performing their official duties should be qualified solely under Article 101 of the Criminal Code of the Republic of Kazakhstan. No additional qualification is required in this case.

The acts provided for in Parts 1 and 2 of Article 101 of the Criminal Code are classified as medium-gravity crimes.

Commentary of 2021 on the Criminal Code of the Republic of Kazakhstan by Isidor Shamilovich Borchashvili, Honoured Figure of Kazakhstan, Doctor of Law, Professor, Academician of the Kazakhstan National Academy of Natural Sciences, member of the Scientific Advisory Councils under the Constitutional Council of the Republic of Kazakhstan and the Supreme Court of the Republic of Kazakhstan, member of the working group on reform of the law enforcement system under the Security Council of the Republic of Kazakhstan, Honoured Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.

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