Commentary on Article 10. Concepts of Crime and Criminal Misdemeanor of the Criminal Code of the Republic of Kazakhstan
Criminal offenses, depending on the degree of their public danger and punishability, are divided into crimes and criminal misdemeanors.
A crime is a culpable socially dangerous act (action or omission) prohibited by this Code under the threat of punishment in the form of a fine, corrective labor, engagement in community service, restriction of liberty, deprivation of liberty, or the death penalty.
A criminal misdemeanor is a culpable act (action or omission) that does not pose a significant public danger, causes minor harm or creates a threat of causing harm to an individual, an organization, society, or the state, and for which punishment is provided in the form of a fine, corrective labor, engagement in community service, arrest, or expulsion from the Republic of Kazakhstan of a foreigner or stateless person.
An action or omission shall not constitute a criminal offense if, although it formally contains the elements of an act provided for in the Special Part of this Code, it does not pose a public danger due to its insignificance.
Part 1 of the commented article, for the first time in the history of criminal law (legislation) of the Republic of Kazakhstan, establishes the concept of a criminal offense. This innovation is one of the key elements of the large-scale reform of Kazakhstani criminal law, which resulted in the adoption of the new Criminal Code of the Republic of Kazakhstan.
A criminal offense is a general composite concept encompassing two types of criminally punishable acts: the previously recognized concept of a crime in criminal law and a new type — a criminal misdemeanor.
A criminal misdemeanor is a fundamentally new type of criminally punishable act, previously unknown not only to the criminal law of the Republic of Kazakhstan but also to the criminal law of other post-Soviet states.
The criminal legislation of foreign countries regulates these matters somewhat differently. Thus, in Germany, criminally punishable acts are divided into criminal offenses and criminal misdemeanors. Criminal offenses include unlawful acts for which the minimum punishment is imprisonment for a term of one year or more, while criminal misdemeanors include acts for which the minimum punishment is a shorter term of imprisonment or a monetary fine.
In Italy, criminal offenses are divided into crimes and criminal misdemeanors. Crimes are punishable by imprisonment and a fine, while the commission of criminal misdemeanors may entail arrest and compensation for damages.
Criminal misdemeanors are also provided for in Spain and France. The type of criminal offense (crime or criminal misdemeanor) determines the procedure for criminal proceedings, the type of punishment, and the procedure for adjudicating criminal offenses.
The idea behind introducing criminal misdemeanors as a category of criminally punishable acts is the gradual integration of provisions of administrative-offense legislation (the Special Part of the Code of the Republic of Kazakhstan on Administrative Offenses) into the sphere of criminal legislation as a so-called lower category of criminally punishable acts that do not pose a significant public danger. This idea is primarily обусловлена harmonization of domestic criminal law, aimed at moving away from the Soviet model and gradually bringing it into line with the classical model of criminal law and legislation of the continental (Roman-Germanic) legal system.
The introduction of criminal misdemeanors, as law enforcement practice demonstrates, was an ill-considered and hasty decision, since legal institutions were mechanically transferred from foreign legislation, as always, without scientific and criminological analysis, forecasting of legal consequences, or consideration of the specific characteristics of Kazakhstan's legislation. This led to the complication of the established system of differentiation of legal liability, an increase in the volume of the Criminal Code, and made the boundaries between administrative offenses and criminal misdemeanors extremely amorphous. As a result, the subject matters of legal regulation of two branches of the Kazakhstani legal system — the Criminal Code and the Code of Administrative Offenses — became mixed. This innovation did not contribute to increasing the effectiveness of combating crime and, most dangerously, led to an increase in the number of innocent persons unjustifiably drawn into the sphere of criminal prosecution. The systemic nature of law was disrupted. Now, at the proposal of law enforcement authorities, legislators have begun returning misdemeanors to the Code of Administrative Offenses (Articles 108 and 109 of the Criminal Code were excluded by the Law of July 3, 2017; Part 1 of Article 379 of the Criminal Code was excluded by the Law of July 3, 2017; Article 393 of the Criminal Code was excluded by the Law of January 21, 2019).
All of them have been returned to the Code of Administrative Offenses, and the process of returning them will continue. Draft future laws provide for the expansion of the categories of criminal misdemeanors being returned to the Code of Administrative Offenses, which had also previously been taken from that Code. It is time to understand that one cannot blindly follow others or thoughtlessly imitate them without taking national particularities into account. This inevitably leads down the wrong path. The mechanical borrowing of provisions from foreign regulatory legal acts, even those that have demonstrated their practical significance, cannot always produce a positive effect in another state.
The problem with the legislative establishment of the institution of criminal misdemeanors also lies in the fact that the legislator has failed to draw a clear distinction based on the substantive criterion of a criminal offense, namely, “public danger.” According to Parts 2 and 3 of Article 10 of the Criminal Code, a crime is a socially dangerous act, whereas a criminal misdemeanor is an act that does not pose a significant public danger. The conflict (contradiction) lies in the fact that the concept of “a low degree of public danger” is a variety (particular case) of the concept of “public danger” and, accordingly, is encompassed by it.
In my opinion, criminal misdemeanors and minor crimes are characterized in the same way by the substantive criterion of a criminal offense, namely, as acts that do not pose a significant public danger. In this regard, to what extent can it be fully justified to claim that the institution of criminal misdemeanors occupies a distinct place between crimes and administrative offenses?
The definition provided for in Part 3 of Article 10 of the Criminal Code cannot be considered successful for another reason: it may be interpreted rather arbitrarily (including as a crime or as an act irrelevant to criminal legislation). It is clear that criminal law should not contain such definitions, and the obvious motivation of the Code's drafters to “be modern” is entirely inappropriate in this case.
The study established that the Criminal Code of the Republic of Kazakhstan contains 143 criminal misdemeanors: 25 criminal misdemeanors are provided for in separate articles of the Special Part of the Criminal Code: Chapter 1 — 2 misdemeanors (Articles 111 and 115); Chapter 2 — 2 misdemeanors (Articles 138 and 144); Chapter 3 — 2 misdemeanors (Articles 154 and 159); Chapter 5 — 1 misdemeanor (Article 183); Chapter 8 — 5 misdemeanors (Articles 225, 227, 241, 242, and 246); Chapter 10 — 2 misdemeanors (Articles 289 and 294); Chapter 13 — 1 misdemeanor (Article 336); Chapter 15 — 1 misdemeanor (Article 363); Chapter 16 — 7 misdemeanors (Articles 381, 383, 391, 395, 397, 400, and 406); Chapter 17 — 1 misdemeanor (Article 436); Chapter 18 — 1 misdemeanor (Article 460).
Only in the first parts of articles of the Criminal Code of the Republic of Kazakhstan — 56 criminal misdemeanors: Chapter 1 — 3 misdemeanors (Articles 117, 118, and 119); Chapter 2 — 1 misdemeanor (Article 137); Chapter 3 — 4 misdemeanors (Articles 149, 150, 155, and 159); Chapter 5 — 1 misdemeanor (Article 186); Chapter 6 — 1 misdemeanor (Article 204); Chapter 7 — 4 misdemeanors (Articles 206, 208, 211, and 213); Chapter 8 — 7 misdemeanors (Articles 226, 228, 229, 230, 234, 236, and 239); Chapter 10 — 2 misdemeanors (Articles 276 and 287); Chapter 11 — 2 misdemeanors (Articles 303 and 306); Chapter 12 — 4 misdemeanors (Articles 317, 320, 321, and 322); Chapter 13 — 6 misdemeanors (Articles 325, 326, 328, 334, 342, and 343); Chapter 14 — 9 misdemeanors (Articles 345, 348, 349, 351, 353, 354, 356, 358, and 359); Chapter 16 — 3 misdemeanors (Articles 376, 382, and 390); Chapter 17 — 1 misdemeanor (Article 419); Chapter 18 — 8 misdemeanors (Articles 438, 443, 447, 448, 449, 463, 464, and 466).
Only in the second parts of articles of the Criminal Code of the Republic of Kazakhstan — 5 criminal misdemeanors: Chapter 2 — 1 misdemeanor (Article 140); Chapter 8 — 1 misdemeanor (Article 243); Chapter 13 — 1 misdemeanor (Article 331); Chapter 14 — 1 misdemeanor (Article 357); Chapter 17 — 1 misdemeanor (Article 407).
Only in the third parts of articles of the Criminal Code of the Republic of Kazakhstan — 1 criminal misdemeanor: Chapter 16 — 1 misdemeanor (Article 385).
Only in the fourth parts of articles of the Criminal Code of the Republic of Kazakhstan — 2 criminal misdemeanors: Chapter 10 — 1 misdemeanor (Article 288); Chapter 17 — 1 misdemeanor (Article 414).
In the first and second parts of articles of the Criminal Code of the Republic of Kazakhstan — 40 criminal misdemeanors: Chapter 1 — 4 misdemeanors (Articles 114 and 131); Chapter 3 — 4 misdemeanors (Articles 145 and 156); Chapter 6 — 12 misdemeanors (Articles 187, 195, 196, 197, 198, and 199); Chapter 7 — 2 misdemeanors (Article 205); Chapter 8 — 4 misdemeanors (Articles 222 and 247); Chapter 11 — 2 misdemeanors (Article 316); Chapter 16 — 8 misdemeanors (Articles 378, 389, 398, and 403); Chapter 17 — 2 misdemeanors (Article 410); Chapter 18 — 2 misdemeanors (Article 440).
In the first, second, and third parts of articles of the Criminal Code of the Republic of Kazakhstan — 12 criminal misdemeanors: Chapter 3 — 3 misdemeanors (Article 152); Chapter 11 — 3 misdemeanors (Article 296); Chapter 13 — 3 misdemeanors (Article 340); Chapter 16 — 3 misdemeanors (Article 384).
In the first and fifth parts of articles of the Criminal Code of the Republic of Kazakhstan — 2 criminal misdemeanors: Chapter 18 — 2 criminal misdemeanors (Article 437).
There are no criminal misdemeanors in Chapters 4 and 9 of the Criminal Code of the Republic of Kazakhstan.
At the stage of transition to a new model of criminal legislation, it is important to determine with the utmost precision the characteristic and distinguishing features of a criminal misdemeanor and a crime, primarily in order to prevent errors in law enforcement and an incorrect or ambiguous understanding of these legal categories.
It is important to note that any criminally punishable act may possess the characteristics (more precisely, the complete set of characteristics) of only one of the two types of criminal offenses; that is, it may be classified either as a crime or as a criminal misdemeanor. Each type of criminal offense (crime and criminal misdemeanor) has clear distinguishing features, and therefore cases of so-called mixed classification, in which one criminally punishable act simultaneously falls under the characteristics of both a crime and a criminal misdemeanor, are excluded.
Before proceeding to a detailed examination of the concepts and characteristics of a crime and a criminal misdemeanor, it is necessary to explain the fundamental basis of a criminal offense, which is the act (action or omission).
A criminal offense (both a crime and a criminal misdemeanor) can be committed only in the form of an act, that is, through active action (actions) or passive omission. Neither thoughts nor intentions that have not found external expression and have not materialized in conduct can be recognized as a criminal offense. As early as the Digest of Justinian, Roman law contained the principle: no one is punished for thoughts (cogitationis poenam nemo patitur). This principle also underlies Kazakhstani law, according to which the basis of criminal liability can only be criminally punishable conduct expressed in a specific act, and not the antisocial characteristics of an individual, their thoughts, or beliefs. At the same time, certain criminal offenses are indeed committed in a verbal (spoken) form, that is, through the expression (orally or in writing) of certain socially dangerous thoughts or statements. Thus, for example, under Article 115 of the Criminal Code, a threat to kill or cause grievous bodily harm, as well as other serious violence against an individual or the destruction of property by arson, explosion, or another generally dangerous method, provided there are sufficient grounds to fear that the threat will be carried out, constitutes a criminally punishable act. However, such conduct is aimed at causing harm prohibited by criminal law — harm to health or to an individual's property rights. Therefore, expressing one's thoughts to another person, for example, telling an acquaintance about an intention to take someone's life, and threatening someone's life are different types of conduct.
Psychologically, every human act has motivation (that is, a specific underlying cause) and is also subject to conscious and volitional control. Under such conditions, freedom of will is ensured, meaning the ability to choose between socially positive and antisocial (socially dangerous) behavior.
So-called unconscious actions (reflex actions or actions committed in a state of delirium) and actions beyond a person's volitional control (committed as a result of irresistible force, etc.) do not constitute criminally punishable acts.
Omission as a form of committing a criminally punishable act is characterized by the passive behavior of an individual who fails to perform certain actions that they could perform in a particular situation and were obliged to perform (by virtue of professional, official, or other legally established duties).
It should be noted that omission does not mean that a person is absolutely passive during the commission of a criminal offense or performs no actions whatsoever. A person may be active but nevertheless fail to perform precisely those actions that, due to certain circumstances (for example, a statutory requirement), they were obliged and able to perform. If there is no objective possibility of performing the required actions, criminal omission does not exist. Thus, a doctor's failure to provide assistance to a patient because it was impossible to reach the patient in time due to a flood does not constitute criminal omission, since the failure to fulfill the doctor's duty was caused in this situation not by the person's will but by irresistible force.
The concept of omission is established in the criminal legislation of certain states. For example, Article 11 of the Criminal Code of the Federal Republic of Germany recognizes a person as liable to punishment only when that person was legally obliged to prevent the occurrence of consequences and when the omission corresponds to the fulfillment of the elements of a crime by action.
Let us examine the concepts and characteristics of crimes and criminal misdemeanors in greater detail.
According to Part 2 of Article 10 of the Criminal Code, a crime is understood as a culpably committed socially dangerous act prohibited by criminal law under the threat of the application of certain types of punishment — a fine, corrective labor, restriction of liberty, engagement in community service, deprivation of liberty, or the death penalty.
By the Law of the Republic of Kazakhstan dated July 12, 2018, “On Amendments and Additions to Certain Legislative Acts of the Republic of Kazakhstan on Issues of Improving Criminal and Criminal Procedure Legislation and the Activities of Law Enforcement and Special State Bodies,” Part 2 of Article 10 of the Criminal Code was supplemented with the punishment of engagement in community service. Thus, for the first time, this type of punishment was established for the commission of a crime. According to Part 2 of Article 43 of the Criminal Code, this type of punishment is established for minor and medium-gravity crimes for a period of two hundred to one thousand two hundred hours.
For a proper understanding and clarification of the legal nature of any legal concept, it is first necessary to identify and analyze its characteristics. Understanding these characteristics becomes particularly important given the need to clearly distinguish between the closely related and homogeneous concepts of “crime” and “criminal misdemeanor.” In order to establish more precisely the differences between these related concepts in terms of their legal nature, it is advisable to analyze the characteristics of crimes and criminal misdemeanors separately.
Compared with the previously effective Criminal Code, the concept of a crime has retained its first three characteristics:
- Guilt (commission of an act intentionally or negligently);
- Public danger (the so-called substantive characteristic of a crime, expressing the highest degree of its negative impact on social relations and their participants, and distinguishing a crime from all other offenses and delicts);
- Unlawfulness (the prohibition of commission established by a specific provision of criminal law).
Guilt. A socially dangerous act may be recognized as a crime only if it has been committed culpably. In accordance with Part 1 of Article 19 of the Criminal Code, “A person shall be subject to criminal liability only for those socially dangerous acts (actions or omissions) and socially dangerous consequences for which their guilt has been established.” Guilt in the criminal-law sense means a person's particular mental attitude toward the socially dangerous act (action or omission) being committed and its socially dangerous consequences. Guilt manifests itself in one of the forms provided for by law: intent (direct or indirect) or negligence (in the form of recklessness or carelessness — Articles 19–22 of the Criminal Code). No act, regardless of how dangerous the consequences it causes may be, can be regarded as a crime if it was committed without guilt (Article 23 of the Criminal Code). Causing harm without guilt is considered an accident or casus. The criminal-law phenomenon in which the concepts of “guilt” and “culpability” are synonymous constitutes the generic concept of intent and negligence.
The term “culpability” used in criminal procedure legislation means the presence of the elements of a criminal offense in a person's act. The principle of the presumption of innocence is based on this understanding of culpability.
Subparagraph 1) of Paragraph 3 of Article 77 of the Constitution of the Republic of Kazakhstan establishes: “A person shall be presumed innocent of committing a crime until their guilt has been established by a court judgment that has entered into legal force.” In this case, guilt is understood as the establishment of the fact that a crime has been committed and that the person's actions contain not only their guilt but also all the elements of the crime as a whole.
Public danger is the substantive characteristic of a crime and expresses the social essence of this legal concept. Public danger is an objective category; it does not depend on the will of the legislator. Public danger is expressed in causing or creating a threat of causing damage to interests protected by the Code. It is precisely the Criminal Code that explains why a particular act is classified as criminally punishable. This is an objective property of a crime. Public danger is also inherent in a criminal misdemeanor, but with certain specific features. We will address them later.
Public danger, as a substantive characteristic of a crime, has qualitative and quantitative characteristics.
The qualitative characteristic of public danger is referred to in legal literature as the nature of public danger. It means the typical characterization of the social harmfulness of certain types of crimes (robbery, hooliganism, terrorism, etc.). The nature of public danger is determined by the importance of the interests and social relations against which the encroachment is directed, the nature of the harm caused, and sometimes the method of encroachment. Thus, encroachments on human health have one typical characteristic, encroachments on property relations have another, and encroachments on the interests of justice have a third, and so on. At the same time, different methods of encroachment upon the same object of crime also have their own nature of public danger (for example, the theft of another person's property by means of larceny, robbery, or armed robbery, and its intentional destruction).
The quantitative indicator of public danger is referred to in legal literature as its degree.
The degree of public danger of a criminal act is the measure of public danger of an individual crime as well as of a group of crimes. Its determination is important when resolving a number of fundamental issues of criminal law. The degree of public danger underlies the classification of crimes. Crimes within the same group differ from one another in their degree of public danger. In addition, the degree of public danger underlies the division of the elements of crimes into basic, qualified, and especially qualified forms, as well as forms with mitigating circumstances. The degree of public danger of acts is taken into account by the legislator when establishing criminal-law sanctions. The latter always reflect the degree of public danger of crimes of the relevant type.
The nature of the public danger of a crime depends on the object of the encroachment established by the court, the form of guilt, and the classification of the criminal act under the relevant category of the Criminal Code. Thus, when determining the degree of public danger of a committed crime, one should proceed both from the requirements of Article 11 of the Criminal Code, which regulates the procedure for determining the gravity of crimes, and from the totality of all circumstances under which the specific criminal act was committed (the form of guilt, motive, method, circumstances and stage of commission of the crime, gravity of the consequences, degree and nature of participation of each defendant in the commission of the crime, etc.).
The degree of public danger is therefore determined by the gravity of the consequences caused, the method of committing the crime if, by its very nature, it changes the social characterization of the act (for example, murder committed by a method dangerous to the lives of other people — subparagraph 6) of Part 2 of Article 99 of the Criminal Code), the form of guilt (if the crime can be committed both intentionally and negligently), the content of motives and purposes, and so on.
Public danger is taken into account by the legislator when deciding whether to criminalize or decriminalize an act. Criminal liability for certain acts is established only if they are objectively socially dangerous. However, it should be borne in mind that the establishment by the legislator of a prohibition in criminal law does not yet mean that a specific action or omission falling within the characteristics of an act specified by law is always criminal. It is important to establish that the particular act imputed to the accused is socially dangerous.
The next characteristic of a crime is criminal unlawfulness. The significance of this characteristic is determined by the fact that it serves as the legal form of expression of public danger. In the theory of criminal law, criminal unlawfulness is regarded as a formal criterion that makes it possible to distinguish crimes from socially harmful acts that are not criminal. No matter how dangerous an act may be, if it is not provided for by criminal law, it cannot be considered a crime. Criminal unlawfulness is a formal characteristic of a crime that cannot be considered in isolation from the public danger of the act.
The criminal unlawfulness of an act is the subjective (at the legislative level) expression of the public danger of that act. This means that, on the one hand, an act that is objectively intolerable to society due to its public danger to the established system of social relations is criminalized, that is, expressly prohibited by a provision of criminal law under the threat of punishment. On the other hand, an act prohibited by criminal law may, due to changes in the nature of social relations or for other reasons, lose its danger to society to such an extent at a certain stage that there is no longer any need to combat this phenomenon by means of criminal law. In such a case, the act is decriminalized, that is, excluded from the Criminal Code.
Criminal unlawfulness legally expresses the public danger and guilt of an act in criminal law. It is derived from them as an evaluative and normative characteristic of a crime. Only a socially dangerous and culpable act is recognized as criminally unlawful.
However, in the science of criminal law, this relationship between substantive and formal characteristics in the definition of a crime has been questioned: “It is indeed necessary to abandon the accepted interpretation of the relationship between these characteristics, under which the substantive characteristic (public danger) is placed at the basis of the definition, while the formal characteristic (criminal unlawfulness) is declared to be derived from it. Apparently, in a state governed by the rule of law, the characteristic of unlawfulness should occupy the primary position.” In my opinion, such a position is unlikely to be acceptable. The dialectics of the interaction between an objective phenomenon and its subjective assessment, in this case by the legislator, remains unchanged: the objective is primary; the subjective is derived from it, but remains in close interaction with it. First comes the real phenomenon, followed by its legislative assessment. Once a positive decision is made regarding criminal unlawfulness, an objectively socially dangerous act becomes a crime.
The primacy and derivative nature of the properties of a crime in terms of their nature and the mechanism of criminalization should not be confused with their significance for the content of a crime. Public danger, guilt, and criminal unlawfulness are equally important properties of a crime. The absence of any one of them excludes the existence of a criminal act. The fact that the definition of a crime first refers to guilt and public danger and then to criminal unlawfulness does not in any way distort this equality.
In light of the above, it can be said that both characteristics — criminal unlawfulness and public danger — are closely interconnected and interdependent.
In the 2014 version of the Criminal Code of the Republic of Kazakhstan, the fourth characteristic of a crime — punishability — underwent substantial changes. In the theory of criminal law, punishability is understood as the mandatory imposition of punishment in the form of a sentence for the commission of any crime. Through this characteristic of a crime, one of the principles of criminal law is implemented — the inevitability of criminal liability.
The essence of the changes lies in narrowing the scope of criminal punishability by specifying certain types of punishment that may be imposed on a person who has committed a crime. These are the following principal types of punishment: a fine, corrective labor, engagement in community service, restriction of liberty, deprivation of liberty, and the death penalty.
At the same time, it is important to note that there are three types of punishment in the above list that are exclusive to crimes: restriction of liberty, deprivation of liberty, and the death penalty. A fine, engagement in community service, and corrective labor may also be imposed for the commission of a criminal misdemeanor.
Punishability as a characteristic of a crime follows from the very definition of a crime. If an act is not punishable, it cannot be regarded as a crime. This provision is established in Part 2 of Article 40 of the Criminal Code, which specifies the principal types of punishment applicable to persons who have committed crimes. In this regard, there is not a single article in the Special Part of the Criminal Code that does not provide for sanctions.
Punishability is understood as the threat of punishment, rather than the actual imposition of punishment. The legislator does not impose strict limitations on law enforcement authorities and the court requiring that the punishment provided for in criminal law must necessarily be applied in every case of a socially dangerous act. Criminal law allows for the possibility of releasing a person from criminal liability and punishment, for example, in connection with active repentance, exceeding the limits of necessary defense, fulfillment of all conditions of a procedural agreement, as well as a change in circumstances (Articles 65, 66, 67, and 70 of the Criminal Code). However, according to Article 68 of the Criminal Code, a person who has committed a criminal misdemeanor or a minor or medium-gravity crime not involving the death of a person is subject to release from criminal liability if they have reconciled with the victim or applicant, including through mediation, and have made reparation for the harm caused. Nevertheless, this does not change the proposition that punishability is an obligatory characteristic of a crime: punishment cannot be conceived without a crime and, accordingly, can only be a consequence of a criminal offense actually committed by a person.
In the science of criminal law, an opinion is expressed according to which the punishability of an act is not a characteristic of a crime but rather its consequence.
There is also an opinion that immorality, that is, the contradiction of a crime with moral norms, should be regarded as an independent characteristic of a crime. Every criminal offense contradicts moral principles. Our legislator does not distinguish immorality as an independent characteristic of a criminal offense. Immorality is inherent not only in criminal offenses but also in other offenses. It seems that the characteristic of immorality is subsumed under the concept of the public danger of a criminal act.
The concept of a criminal misdemeanor is provided in Part 3 of the commented article. A criminal misdemeanor is understood as a culpable act (action or omission) that does not pose a significant public danger, causes minor harm or creates a threat of causing harm to an individual, an organization, society, or the state, and for which punishment is provided in the form of a fine, corrective labor, engagement in community service, arrest, or expulsion from the Republic of Kazakhstan of a foreigner or stateless person.
As can be seen from this definition, the concept of a criminal misdemeanor differs in certain respects from the concept of a crime. Thus, the characteristics of a criminal misdemeanor are as follows:
- guilt;
- a low degree of public danger;
- unlawfulness;
- causing minor harm or creating a threat of causing such harm;
- punishability in the form of a fine, corrective labor, engagement in community service, or arrest.
Only two characteristics fully coincide with those of a crime: guilt and unlawfulness.
The characteristic of public danger in a criminal misdemeanor has a specific feature: it manifests itself to a low degree. As stated above, the characteristic of public danger describes the substantive aspect of a criminally punishable act, expressing the degree of its negative antisocial significance. Thus, the reference to a low degree of public danger indicates the comparatively lesser socially harmful impact of this group of criminal offenses and thereby distinguishes them from other criminal offenses — crimes. At the same time, community service is imposed only for minor and medium-gravity crimes.
The characteristic of a criminal misdemeanor known as “punishability,” just as in the case of a crime, provides for a limited list of punishments imposed for the commission of a criminal misdemeanor. These are five principal types of punishment: a fine, corrective labor, engagement in community service, arrest, and expulsion from the Republic of Kazakhstan of a foreigner or stateless person.
By the Law of the Republic of Kazakhstan dated January 21, 2019, “On Amendments and Additions to Certain Legislative Acts of the Republic of Kazakhstan on Issues of Strengthening the Protection of Property Rights, Arbitration, Optimization of the Judicial Workload, and Further Humanization of Criminal Legislation,” Part 3 of Article 10 of the Criminal Code was supplemented with the punishment of “expulsion from the Republic of Kazakhstan of a foreigner or stateless person.” The same Law supplemented Part 1 of Article 40 of the Criminal Code with subparagraph 5), “expulsion from the Republic of Kazakhstan of a foreigner or stateless person.”
At the same time, there is only one type of punishment that is exclusive to criminal misdemeanors — arrest.
Nevertheless, it should be noted that although expulsion from the Republic of Kazakhstan of a foreigner or stateless person is provided for as a punishment for a criminal misdemeanor (Part 3 of Article 10 of the Criminal Code), it may also be imposed for a crime. Thus, according to Part 2 of Article 51 of the Criminal Code, expulsion from the Republic of Kazakhstan of a foreigner or stateless person for committing a crime may be imposed as an additional type of punishment, whereas for committing a criminal misdemeanor it may be imposed as either a principal or an additional type of punishment.
As noted above, a fine, corrective labor, and engagement in community service are also included among the punishments imposed for crimes.
If the concept of a crime is characterized by four features (guilt, public danger, unlawfulness, and punishability), the concept of a criminal misdemeanor has five characteristic features. The list of the four above-mentioned features is supplemented by a fifth — causing minor harm or creating a threat of causing harm to an individual, an organization, society, or the state. This feature indicates the minor nature of the socially dangerous consequences arising as a result of a criminal misdemeanor. In other words, this feature has a common basis with the previously considered feature of a criminal misdemeanor — its low degree of public danger. It is precisely in the nature and degree of severity of socially dangerous consequences or the threat thereof that the characteristic of public danger is expressed.
The existence of two grounds within this feature — actual harm caused and the threat of causing such harm — indicates that, in terms of the construction of their objective elements, the elements of criminal misdemeanors may be either material or formal.
At the same time, when interpreting the feature under consideration, questions may arise regarding the nature and degree of the threat of harm created as a result of the commission of a criminal misdemeanor. Thus, while the legislator clearly specifies the minor nature of the harm actually caused by a criminal misdemeanor, no such specification is provided with respect to the threat of causing harm.
The question arises: does the composition of a criminal misdemeanor cover only the threat of causing minor harm or the threat of causing any harm to the objects of criminal-law protection? An analysis of the articles of the Special Part of the Criminal Code makes it possible to conclude that, in this case, a threat of minor harm is implied. A threat of other harm (more substantial or significant) is already covered by the elements of a crime. Thus, Part 1 of Article 285 of the Criminal Code, “Violation of the Rules for Handling Radioactive Substances, Radioactive Waste, and Nuclear Materials,” provides in the construction of its objective elements for the creation of a threat of human death or other grave consequences. This act is recognized as a crime because the sanction of the article provides for punishment in the form of deprivation of liberty.
Accordingly, by applying the method of logical exclusion, the conclusion is reached that it is precisely the threat of minor socially dangerous consequences that is a characteristic feature of the concept of a criminal misdemeanor.
Each of the four characteristics of a crime and the five characteristics of a criminal misdemeanor is equal in formal legal terms. Thus, the absence of at least one of them indicates the absence of a crime or criminal misdemeanor as a whole.
Based on the analysis of the characteristics of crimes and criminal misdemeanors, it should be concluded that, in practice, the characteristic of “punishability” will play the primary role in the classification of criminal offenses. It is precisely on the basis of the types of punishment provided for in the sanctions of the articles of the Special Part of the Criminal Code that the classification of a particular act as either a crime or a criminal misdemeanor will be established. Thus, punishability becomes the differentiating and determining characteristic of a crime and a criminal misdemeanor.
Paragraph 51 of the Normative Resolution of the Supreme Court of the Republic of Kazakhstan dated April 20, 2018, “On the Court Judgment,” states that:
“Acts specified in Part 4 of Article 10, Part 4 of Article 19, Article 23, the first parts of Articles 26, 32, 33, 34, 35, 36, 37, and 38, in the notes to Articles 253 (paragraph 2), 366, 367 (paragraph 1), 375, 376, 378, 421, 432, and 434 of the Criminal Code, as well as acts committed by persons specified in Part 1 of Article 16 of the Criminal Code or by persons who have not reached the age at which criminal liability arises in accordance with Article 15 of the Criminal Code, shall not constitute criminal offenses and may not entail criminal liability.
Upon discovering the above circumstances that exclude criminal liability, the court shall render an acquittal on the grounds that the act does not contain the elements of a criminal offense, except for the cases provided for in Part 2 of Article 391 of the Criminal Procedure Code.”
Part 4 of Article 10 of the Criminal Code provides for the concept of so-called insignificance of an act. In judicial and investigative practice, problems frequently arise in distinguishing a criminal offense from an act that formally contains the characteristics of a particular element of a criminal offense specified in criminal law but, due to its insignificance, does not pose a public danger. According to this provision, an action or omission shall not constitute a criminal offense if, although it formally contains the elements of an act provided for in the Special Part, it does not pose a public danger due to its insignificance.
The following conclusions can be drawn from this definition. First, for an act to be recognized as a crime, its formal similarity to a criminal offense described in a particular provision of the Special Part of the Criminal Code is not sufficient. Even where such similarity exists, the act may be recognized as insignificant (for example, the open theft of a pack of cigarettes) and therefore as not posing a public danger. The question of recognizing a particular act as insignificant falls within the competence of the court, prosecutor, investigator, or inquiry body. If an act is recognized as insignificant, then, in accordance with criminal procedure legislation, pre-trial investigation must not be initiated, and any investigation already initiated must be terminated due to the absence of the elements of a crime in the act. Second, an act recognized as insignificant and therefore non-criminal may entail other types of legal liability: administrative, civil-law, disciplinary, etc. Consequently, the law's indication that such acts lack public danger should be understood not as meaning the absolute absence of public danger (as, for example, in cases of necessary defense or extreme necessity), but rather in the sense that the public danger of acts recognized as insignificant does not reach the degree inherent in crimes.
Thus, for example, three fourteen-year-old teenagers were convicted of secretly stealing another person's property, committed by a group of persons pursuant to a prior conspiracy (subparagraph 1) of Part 2 of Article 188 of the Criminal Code). They came to a summer cottage plot and stole a bucket of tomatoes with a total value of 650 tenge. The case established that the minors had stolen tomatoes worth an insignificant amount, since the minimum monthly wage at the time of the commission of the offense was 719 tenge. At the trial, the victim acknowledged that the tomatoes had been returned, considered the damage insignificant, and asked that the teenagers not be held criminally liable. In this case, the actions of the perpetrators do not pose a public danger due to their insignificance.
An insignificant act does not constitute a criminal offense if two conditions are present simultaneously.
First: it must formally fall within the characteristics of a criminal offense provided for by criminal law. In other words, it must contain, purely externally, the element of criminal unlawfulness.
Second: it must lack public danger. A certain amount of harm may exist in insignificant acts. However, it does not reach the threshold for the application of criminal law, and a civil-law, administrative, disciplinary, or moral assessment is sufficient.
In determining whether an act is insignificant, the following should be taken into account:
- Only an intentional act may be insignificant, where the person intended to cause minimal harm. If the intent was directed at stealing property but, due to the absence of the intended property, the perpetrator limited themselves to an insignificant item, this is not an insignificant theft but an attempted theft (Part 3 of Article 24, Article 188 of the Criminal Code);
- in a number of crimes, the law recognizes the infliction of significant damage (Article 202 of the Criminal Code) or large-scale damage (Article 216 of the Criminal Code) as a mandatory, rather than qualifying, element. The absence of such damage excludes the element of criminal unlawfulness and means that the act does not even formally fall within the characteristics of the crime provided for by the Criminal Code. In this case, the criminal act is not investigated on the grounds of insignificance, but due to the absence of the elements of a crime — namely, the mandatory element of significant or large-scale damage;
- the insignificance of an act is absent when a crime is committed with alternative intent, that is, when a person foresees and desires any of the possible outcomes of causing harm. Liability then arises for the greatest harm (or an attempt to cause it). This is explained by the fact that the perpetrator desired to cause any of the possible forms of harm;
- the commission of a crime with an indefinite (unspecified) intent, that is, when a person accepts the possibility of any of the possible outcomes of causing harm, cannot likewise be regarded as an insignificant act. Liability arises for the harm actually caused. However, the grounds here are different. The criminal case will not be terminated on the grounds of the insignificance of the act.
For example, when committing pickpocketing, a person acts with unspecified intent. They allow for the possibility that the victim may be carrying different amounts of money. Therefore, taking an insignificant amount cannot be regarded as an insignificant act;
- negligent criminal offenses are unlikely to be insignificant, since they are classified as criminally punishable acts when they cause large-scale damage or other substantial harm. Thus, the destruction of or damage to another person's property committed through negligence constitutes a criminal offense if it causes large-scale damage.
If an act does not contain a significant degree of public danger, it cannot be regarded as a crime. The degree of public danger of acts recognized as crimes is higher than that of administrative offenses.
Thus, it should be noted that the basis for recognizing a particular act as insignificant must be the existence of circumstances that formally contain the characteristics established by criminal law but do not actually correspond to the meaning of those characteristics within the system of criminally unlawful conduct described by the legal elements of a criminal offense and the degree of public danger contemplated by the legislator.
In conclusion, I would like to draw the legislator's attention to the following: excessive detailing of the concept of a criminal misdemeanor gives rise to problems in distinguishing a completed criminal misdemeanor from an attempt. The solution, in my view, lies in excluding from the concept of a criminal misdemeanor (Part 3 of Article 10 of the Criminal Code) the wording “causing minor harm or creating a threat of causing harm to an individual, an organization, society, or the state.”
And finally: it seems appropriate to place the provision on the legislative regulation of the grounds for criminal liability (Article 4 of the Criminal Code) after Article 10 of the Criminal Code, since the basis of criminal liability is not only the elements of a crime but also the crime itself. Therefore, after setting out the legislative position on the elements of a crime as one of the grounds for liability, moving on to the presentation of the parameters of a criminal offense is naturally justified.
Commentary from 2021 on the Criminal Code of the Republic of Kazakhstan by Isidor Shamilovich Borchashvili, Honored 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 the Reform of the Law Enforcement System under the Security Council of the Republic of Kazakhstan, Honored Worker of the Ministry of Internal Affairs of the Republic of Kazakhstan.*
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