Commentary on Article 105. Bringing a Person to Suicide of the Criminal Code of the Republic of Kazakhstan

1. Bringing a person to suicide or attempted suicide through threats, cruel treatment, or systematic humiliation of the victim’s human dignity —

shall be punishable by restriction of liberty for a term of up to three years or imprisonment for the same term.

2. The same act committed:

1) against a person who is knowingly, for the perpetrator, in a helpless condition or in material or other dependence on the perpetrator;

2) against two or more persons;

3) by a group of persons acting by prior conspiracy or by a criminal group;

4) through the use of telecommunications networks, including the Internet —

shall be punishable by restriction of liberty for a term of up to five years or imprisonment for the same term.

3. Acts provided for in Parts One or Two of this Article, committed against a minor —

shall be punishable by imprisonment for a term of three to eight years.

Public danger. Suicide as such does not fall within the problems of criminal law. However, bringing a person to suicide is a socially dangerous act that violates one of the fundamental human rights — the right to life.

There is no criminal-law definition of suicide. This omission is remedied to a certain extent by a specialised, subject-oriented science — suicidology. In accordance with the medical and psychological standards adopted in this field, suicide is understood as “a voluntary, independent act whose immediate and nearest purpose is to deprive oneself of life.” Definitions found in legal literature generally reproduce the substance of this definition. At the same time, in every case, awareness is recognised as an obligatory characteristic of suicide, i.e. the understanding by the person depriving themselves of life of the meaning and consequences of the actions being committed and their irreversibility.

The object of this crime is human life.

The objective aspect of the crime is expressed primarily in active actions aimed at bringing a person to suicide or attempted suicide.

The methods of bringing a person to suicide are specified by the legislator in the provision of the law. They include: a) threats; b) cruel treatment; c) systematic humiliation of human dignity. If it is established that the victim was in material or other dependence on the perpetrator, the act must be classified under Part 2 of Article 105 of the Criminal Code.

A threat should be understood as psychological influence on the victim that served as an impetus for suicide (for example, a threat to deprive the victim of housing, employment, financial assistance, means of subsistence, a threat of physical violence or dissemination of defamatory information, etc.).

For a threat to be recognised as a method of bringing a person to suicide, not only its content but also its repetition and duration are significant. Even an insignificant threat may bring a victim to suicide if it takes on the character of psychological trauma. On the other hand, not every threat expressed once, even if serious in content, may be regarded as a method of bringing a person to suicide. It is no coincidence that in Article 105 of the Criminal Code the legislator refers to threats as a method of bringing a person to suicide in the plural. In this regard, it appears that a single instance of a threat made by the perpetrator is not yet grounds for applying Article 105 of the Criminal Code. In the offence of bringing a person to suicide, threats are not accompanied by the imposition of any specific demands by the perpetrator (for example, the transfer of property, entering into sexual relations, etc.); otherwise, the act should be classified according to the direction of the intent (robbery, rape).

For the existence of the elements of the crime, the form in which the threats are expressed is irrelevant: orally or in writing, openly or anonymously. Threats must be real and genuine. For the purpose of classifying the crime, it must be established that the victim perceived the threats as posing a real danger to their existence.

Cruel treatment means merciless, harsh behaviour that causes the victim physical and psychological suffering. It is expressed in the infliction of physical or psychological suffering on the victim (beatings, torture, forcing the victim to perform meaningless work, denial of food or medical assistance, mockery, unlawful deprivation of liberty, unlawful placement in a psychiatric hospital, etc.). It is important to establish that cruel treatment of the victim was not a single or accidental occurrence, but rather constituted a system of deliberate and continuing actions by the perpetrator. Therefore, the opinion that a single instance of cruel treatment provides grounds for holding a person criminally liable for this crime can hardly be considered convincing.

Systematic humiliation of human dignity means the prolonged manifestation of degrading treatment towards the victim. The dignity of every person exists a priori, from the outset. It is no coincidence that Article 17 of the Constitution of the Republic of Kazakhstan emphasises that human dignity is inviolable. No one shall be subjected to torture, violence, or other cruel or degrading treatment or punishment. Systematic humiliation of human dignity is expressed in the commission, three or more times, of acts that humiliate the honour and dignity of the victim: insults, ridicule, defamation, bullying, unfounded criticism, etc. At the same time, the elements of the crime of bringing a person to suicide may exist only in cases of systematic humiliation of human dignity. A single instance of insult does not constitute the elements of this crime.

The above-mentioned methods of bringing a person to suicide are often combined.

The communication or dissemination, in a decent form, of information that diminishes the dignity of the victim cannot be recognised as humiliation of human dignity.

An obligatory element of the constituent elements of this crime is the causal link between the fact of suicide (attempted suicide) and the perpetrator’s act, i.e. it must be established that it was precisely the unlawful actions (inaction) of the person that served as the immediate cause prompting the victim to commit suicide. If the victim committed suicide for other reasons, criminal liability under Article 105 of the Criminal Code is excluded. Thus, lawful deprivation of liberty of a person who has committed a crime, or refusal to enter into marriage, which resulted in the victim’s suicide, does not constitute the elements of the crime under consideration.

The actions of the perpetrator are classified under Article 105 of the Criminal Code not only when the victim has committed suicide, but also when an attempted suicide has occurred (an attempt to take one’s own life). In this regard, it must be established that the attempt was genuine and not made for the purpose of frightening someone or achieving a goal set by the victim. Thus, the elements of the type of crime under consideration are formal.

In order to bring a person to criminal liability under the Article of the Criminal Code under consideration, it must be established that the victim acted intentionally when depriving themselves of life. If the victim caused their own death through negligence, the elements of the crime under consideration will not be present.

It is also necessary to establish that the perpetrator did not commit actions capable of causing the victim’s death. For example, if a female victim, while escaping rape, jumped out of a third-floor window and died, the perpetrator should be held liable for attempted rape resulting in the victim’s death through negligence (provided that it is established that she did not intend to commit suicide but wanted to escape the perpetrator’s pursuit).

The crime is considered completed in cases where the perpetrator’s actions have resulted in suicide or attempted suicide.

The subjective aspect of bringing a person to suicide. In criminal-law literature, the issue of the subjective aspect of the crime provided for in Article 105 of the Criminal Code is resolved inconsistently. Most authors adhere to the position that this crime is committed only intentionally. Some authors allow only indirect intent, while others believe that, when bringing a person to suicide, the perpetrator may act with either direct or indirect intent. There is also a position according to which this crime may be committed both intentionally and negligently: with direct or indirect intent, through recklessness or as a result of negligence. There is an opinion that, where there is direct intent to bring the victim to suicide, the act constitutes murder and should be classified under Article 99 of the Criminal Code.

The Supreme Court of the Republic of Kazakhstan adheres to a similar position. Thus, paragraph 29 of the Regulatory Resolution “On the Classification of Certain Criminal Offences Against Human Life and Health” states: “The subjective aspect of bringing a person to suicide is characterised by intent in the commission of the above-mentioned actions and is expressed in the form of negligence in relation to the criminal result. Where the above-mentioned actions are committed by the perpetrator with the intent to cause the victim’s death by bringing them to suicide, and the perpetrator desires such a result, the act committed should be classified as intentional murder under the relevant part of Article 99 of the Criminal Code.”

This opinion is erroneous because it overlooks the difference between the objective aspects of murder and bringing a person to suicide. When committing the crime provided for by the Article under commentary, unlike in murder, the perpetrator does not commit actions that directly lead to the victim’s death. The victim makes the decision to end their life and carries it out themselves, guided by their own consciousness and will.

An exception may arise in cases where the guilty person deliberately uses a mentally helpless person to deprive themselves of their own life, taking into account that death is caused to a victim who is knowingly in a helpless condition for the perpetrator. In this case, it cannot be ruled out that the actions of the guilty person contain the elements of the crime provided for in Article 99 of the Criminal Code. An obligatory requirement in this regard is the perpetrator’s awareness of the victim’s age-related and individual psychological characteristics indicating their helplessness. Therefore, it is very important that law enforcement authorities take these nuances into account when classifying the actions of perpetrators under subparagraph 1) of Part 2 of Article 105 of the Criminal Code.

It appears that the subjective aspect of bringing a person to suicide is characterised by an intentional form of guilt. Under the law, criminal liability for bringing a person to suicide applies to a person who commits this crime with direct or indirect intent. The perpetrator is aware that, by the method specified in the law, they are compelling the victim to commit suicide, foresees the possibility or inevitability of the victim depriving themselves of life, and desires (direct intent) the occurrence of these consequences, or consciously allows them to occur or is indifferent to them (indirect intent). In principle, negligent bringing of a person to suicide is also possible. However, pursuant to Part 4 of Article 19 of the Criminal Code, liability in this case is excluded.

It should be noted that when a person is brought to attempted suicide, the act is classified under the relevant part of Article 105 of the Criminal Code without reference to Part 3 of Article 24 of the Criminal Code.

The subject of the crime is a sane natural person who has attained the age of 16, as well as a person upon whom the victim was materially or otherwise dependent. If bringing a person to suicide is committed by an official, their actions are classified as a concurrence of crimes provided for in Article 105 and Part 4 of Article 362 of the Criminal Code (exceeding official authority resulting in grave consequences).

Part 2 of Article 105 of the Criminal Code provides for qualified offences of bringing a person to suicide:

against a person who is knowingly, for the perpetrator, in a helpless condition or in material or other dependence on the perpetrator;

against two or more persons;

by a group of persons acting by prior conspiracy or by a criminal group;

through the use of telecommunications networks, including the Internet.

The concept of a person who is knowingly in a helpless condition for the perpetrator is set out in the commentary to subparagraph 3) of Part 2 of Article 99 of the Criminal Code.

Material dependence should be understood as a situation in which the victim is maintained by the perpetrator or receives substantial financial support from them (for example, the material dependence of incapacitated parents on their able-bodied children or of an incapacitated spouse on the other spouse, etc.). Other forms of dependence may have various grounds: the dependence of a subordinate on a superior, dependence arising from the fact of cohabitation, etc. The perpetrator is aware of the fact of this dependence and often bases their decision on it.

Bringing two or more persons to suicide or attempted suicide means the actions of the perpetrator consisting of bringing several persons, simultaneously or successively, to suicide or attempted suicide through threats, cruel treatment, or systematic humiliation of the victims’ human dignity. The intent in this case may be either direct or indirect in relation to all victims.

If, where the perpetrator’s intent is directed at bringing two or more persons to suicide or attempted suicide, the result of the criminal intention is the suicide of one person and the attempted suicide of another, the act committed should be classified under subparagraph 2) of Part 2 of Article 105 of the Criminal Code.

Bringing a person to suicide or attempted suicide should be recognised as having been committed by a group of persons acting by prior conspiracy if the persons agreed in advance to jointly commit the criminal offence and then each of them participated in its implementation.

The concept of a criminal group is set out in the commentary to subparagraph 15) of Part 2 of Article 99 of the Criminal Code.

Part 2 of Article 105 of the Criminal Code provides for the commission of this act through the use of telecommunications networks, including the Internet.

A telecommunications network is a set of hardware and software tools that ensure the transmission of information between information systems, as well as between other telecommunications networks. According to the accessibility criterion, telecommunications networks are divided into local, departmental, corporate, and publicly accessible networks.

Bringing a person to suicide or attempted suicide by committing actions that constitute an independent criminal offence (torture, causing grievous or other harm to health, unlawful deprivation of liberty, rape, extortion, etc.) requires classification under the aggregate of the specified crimes and Article 105 of the Criminal Code.

Part 3 of Article 105 of the Criminal Code establishes liability for acts provided for in Parts 1 or 2 of this Article, committed against a minor. A minor is a person who has not attained the age of 18. At the same time, it should be noted that the legislator does not use the word “knowingly”. Does this mean that, for the elements of the crime under Part 3 of the Article under commentary to be present, the perpetrator is not required to be aware of the victim’s minor age when committing the specified crime?

I will examine this issue in greater detail when commenting on Article 120 of the Criminal Code.

According to paragraph 3 of clause 16 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated 28 December 2009, “On the Application of Criminal and Criminal Procedure Legislation on Issues of Ensuring Personal Liberty and Inviolability of Human Dignity, and Combating Torture, Violence and Other Cruel or Degrading Forms of Treatment and Punishment”, bringing a person to suicide as a result of torture should be classified under the aggregate of the relevant part of Article 146 and Article 105 of the Criminal Code.

In concluding the examination of criminal-law provisions whose object of encroachment is the life of the victim, I would like to draw the attention of the Supreme Court of the Republic of Kazakhstan to the following circumstances: firstly, the Regulatory Resolution “On the Classification of Certain Criminal Offences Against Human Life and Health” does not contain answers to certain key issues concerning the classification of murder, bringing a person to suicide, or attempted murder; secondly, certain interpretations of the Supreme Court do not correspond to the theoretical developments of the science of criminal law (for example, paragraph 2 of clause 5 and paragraph 2 of clause 29 of the Regulatory Resolution of the Supreme Court, etc.); thirdly, related criminal offences are not always distinguished where such distinction is necessary, and where it is made, it is done superficially; fourthly, arguments supporting the interpretation of certain issues are not always presented at the appropriate level, etc.; fifthly, the Supreme Court does not always manage to introduce amendments and additions to its own resolutions in a timely manner in connection with amendments and additions to the Criminal Code made by Parliament (which are often superficial and insufficiently substantiated).

The acts provided for in Parts 1 and 2 of Article 105 of the Criminal Code are classified as medium-gravity crimes.

The act provided for in Part 3 of Article 105 of the Criminal Code is classified as a serious crime.

Commentary of 2021 to 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 the 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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