Commentary on Article 11. Categories of Crimes under the Criminal Code of the Republic of Kazakhstan

Crimes, depending on the nature and degree of their public danger, are divided into minor crimes, crimes of medium gravity, grave crimes and especially grave crimes.

Minor crimes are intentional acts for which the maximum punishment provided for by this Code does not exceed two years of imprisonment, as well as negligent acts for which the maximum punishment provided for by this Code does not exceed five years of imprisonment.

Crimes of medium gravity are intentional acts for which the maximum punishment provided for by this Code does not exceed five years of imprisonment, as well as negligent acts for which imprisonment for a term exceeding five years is provided as a punishment.

Grave crimes are intentional acts for which the maximum punishment provided for by this Code does not exceed twelve years of imprisonment.

Especially grave crimes are intentional acts for which this Code provides for punishment in the form of imprisonment for a term exceeding twelve years, life imprisonment or the death penalty.

Categorization or classification of crimes is their division into groups according to certain criteria. Depending on the objective pursued, crimes may be classified according to various characteristics. According to the form of guilt, they are divided into intentional and negligent crimes; according to the object of encroachment, they are grouped into categories included in separate chapters of the Special Part of the Criminal Code of the Republic of Kazakhstan.

The total number of all criminal offences under the Criminal Code (including all categories) is 823. Of these, minor crimes account for 161; crimes of medium gravity — 252; grave crimes — 300; especially grave crimes — 110.

By chapter: Chapter 1 of the Special Part of the Criminal Code contains: 12 minor crimes; 18 crimes of medium gravity; 23 grave crimes; 16 especially grave crimes.

Chapter 2 of the Criminal Code: 6 minor crimes; 2 crimes of medium gravity; 15 grave crimes; 3 especially grave crimes.

Chapter 2 of the Criminal Code: 6 minor crimes; 2 crimes of medium gravity; 15 grave crimes; 3 especially grave crimes.

Chapter 3 of the Criminal Code: 6 minor crimes; 12 crimes of medium gravity; 5 grave crimes; no especially grave crimes.

Chapter 4 of the Criminal Code: no minor crimes; 2 crimes of medium gravity; 10 grave crimes; 16 especially grave crimes.

Chapter 5 of the Criminal Code: 1 minor crime; 2 crimes of medium gravity; 7 grave crimes; 13 especially grave crimes.

Chapter 6 of the Criminal Code: 6 minor crimes; 16 crimes of medium gravity; 31 grave crimes; 2 especially grave crimes.

Chapter 7 of the Criminal Code: 7 minor crimes; 4 crimes of medium gravity; 9 grave crimes; no especially grave crimes.

Chapter 8 of the Criminal Code: 19 minor crimes; 26 crimes of medium gravity; 14 grave crimes; no especially grave crimes.

Chapter 9 of the Criminal Code: 1 minor crime; 7 crimes of medium gravity; 3 grave crimes; 2 especially grave crimes.

Chapter 10 of the Criminal Code: 12 minor crimes; 25 crimes of medium gravity; 46 grave crimes; 25 especially grave crimes.

Chapter 11 of the Criminal Code: 8 minor crimes; 13 crimes of medium gravity; 23 grave crimes; 7 especially grave crimes.

Chapter 12 of the Criminal Code: 6 minor crimes; 10 crimes of medium gravity; 3 grave crimes; no especially grave crimes.

Chapter 13 of the Criminal Code: 2 minor crimes; 23 crimes of medium gravity; 17 grave crimes; no especially grave crimes.

Chapter 14 of the Criminal Code: 24 minor crimes; 13 crimes of medium gravity; 11 grave crimes; no especially grave crimes.

Chapter 15 of the Criminal Code: 7 minor crimes; 13 crimes of medium gravity; 13 grave crimes; 2 especially grave crimes.

Chapter 16 of the Criminal Code: 17 minor crimes; 23 crimes of medium gravity; 13 grave crimes; 2 especially grave crimes.

Chapter 17 of the Criminal Code: 11 minor crimes; 25 crimes of medium gravity; 35 grave crimes; 2 especially grave crimes.

Chapter 18 of the Criminal Code: 16 minor crimes; 18 crimes of medium gravity; 22 grave crimes; 20 especially grave crimes.

The total number of intentional crimes provided for by the Criminal Code of the Republic of Kazakhstan is 734 (90%); the total number of negligent crimes is 79 (10%). Chapters 4, 7, 8, 16 and 17 contain no negligent crimes.

Pursuant to Part 1 of Article 11 of the Criminal Code, the legislator divides all crimes, depending on the nature and degree of their public danger, into minor crimes, crimes of medium gravity, grave crimes and especially grave crimes.

The nature of public danger expresses the direction of a criminal act, i.e. indicates what is harmed as a result of the commission of that crime. Thus, in terms of the nature of public danger, murder differs from the infliction of grievous bodily harm and robbery; theft differs from robbery, etc. Therefore, one crime differs from another in the nature of its public danger, which expresses the qualitative essence of the act.

The degree of public danger reflects its quantitative essence and measure of danger. Therefore, the degree of public danger makes it possible to distinguish between criminal acts within the same article of the Criminal Code of the Republic of Kazakhstan or under different articles providing for liability for the same type of crime. Thus, crimes differ in their degree of public danger, for example, theft under Part 1 of Article 188 and theft under Part 2 of Article 188, as well as murder under Part 1 of Article 99 and murder under Article 100 of the Criminal Code.

The nature and degree of public danger of a criminal act are significantly interrelated with the form of guilt and the severity of the punishment. Therefore, the classification of crimes into categories is based on these circumstances: the form of guilt and the severity of the punishment.

Thus, in accordance with Part 2 of Article 11 of the Criminal Code, minor crimes are intentional acts for which the maximum punishment provided for by the Criminal Code of the Republic of Kazakhstan does not exceed two years of imprisonment, as well as negligent acts for which the maximum punishment provided for by the Criminal Code of the Republic of Kazakhstan does not exceed five years of imprisonment. The total number of minor crimes is 161. Chapter 4 contains no minor crimes.

Part 3 of Article 11 of the Criminal Code establishes that crimes of medium gravity are intentional acts for which the maximum punishment provided for by the Criminal Code of the Republic of Kazakhstan does not exceed five years of imprisonment, as well as negligent acts for which imprisonment for a term exceeding five years is provided as a punishment. The total number of crimes of medium gravity is 252.

Grave crimes are intentional acts for which the maximum punishment provided for by the Criminal Code of the Republic of Kazakhstan does not exceed twelve years of imprisonment (Part 4 of Article 11 of the Criminal Code). The total number of grave crimes is 300.

Especially grave crimes are intentional acts for which the criminal law provides for punishment in the form of imprisonment for a term exceeding twelve years or the death penalty (Part 5 of Article 11 of the Criminal Code). The total number of especially grave crimes is 110. Chapters 3, 7, 8, 12, 13 and 14 contain no especially grave crimes.

As can be seen from the provisions of the commented article, the upper limit of imprisonment is the basis for classifying crimes. However, each category also necessarily has a lower limit, which is not specified in the Criminal Code and which, consequently, the law enforcement officer must bear in mind. I believe that the legislator has something to consider in this regard. It would be possible to examine the advisability of establishing a separate classification of negligent crimes, since the consequences resulting from their commission are sometimes several times more severe than the consequences of intentional crimes. Therefore, classifying negligent crimes only as minor crimes and crimes of medium gravity raises doubts.

The legislative classification of crimes is important for resolving a number of practical issues concerning the application of criminal law:

The category of a crime is taken into account when establishing simple recidivism (Part 1 of Article 14 of the Criminal Code) and dangerous recidivism (Part 2 of Article 14 of the Criminal Code);

Criminal liability arises for preparation for a grave or especially grave crime, as well as for a terrorist crime (Part 2 of Article 24 of the Criminal Code), and for an attempt to commit a crime of medium gravity, a grave or especially grave crime, as well as an attempt to commit a terrorist crime (Part 4 of Article 24 of the Criminal Code);

When a person is sentenced to imprisonment, the type of correctional institution and the regime of the correctional colony (institution of the penal enforcement system) are determined taking into account the category of the crime for which the punishment has been imposed (Article 46 of the Criminal Code);

The death penalty may be imposed only for especially grave military crimes committed in wartime, with the convicted person being granted the right to petition for clemency. The death penalty may be imposed by a court and carried out only in wartime (Part 1 of Article 47 of the Criminal Code);

The commission for the first time of a criminal misdemeanour or, for the first time, of a minor crime or a crime of medium gravity as a result of a random concurrence of circumstances may constitute a mitigating circumstance affecting criminal liability and punishment (Subparagraph 1) of Part 1 of Article 53 of the Criminal Code);

The categorization of crimes is taken into account when imposing punishment for an aggregate of criminal offences (Article 58 of the Criminal Code).

Exemption from criminal liability in connection with active repentance may be applied only to persons who have committed a criminal misdemeanour, as well as to persons who have committed a crime for the first time (Part 1 of Article 65 of the Criminal Code), with the exception of terrorist crimes, extremist crimes, crimes committed as part of a criminal group, crimes against the sexual inviolability of minors, torture, grave or especially grave crimes against the person, except in cases specifically provided for by the relevant articles of the Special Part of the Criminal Code. This restriction does not apply to minors who have committed a crime against the sexual inviolability of a minor aged between fourteen and eighteen years (Part 2 of Article 65 of the Criminal Code), while exemption from criminal liability in connection with reconciliation applies where a person has committed a criminal misdemeanour or a minor crime or a crime of medium gravity not associated with causing death (Part 1 of Article 68 of the Criminal Code);

The limitation periods for bringing a person to criminal liability (Article 71 of the Criminal Code) and for the limitation period of a conviction (Article 77 of the Criminal Code) are determined by the category of the crime committed;

The portion of the sentence that must be served before conditional early release from serving the sentence becomes possible (Part 3 of Article 72 of the Criminal Code), or before the unserved portion of the sentence may be replaced with a more lenient punishment or the imposed sentence may be reduced (Article 73 of the Criminal Code), depends on the category of the crime for which the convicted person is serving the sentence;

Pregnant women and women with young children, as well as men raising young children alone, who have been sentenced to imprisonment for a term exceeding five years for grave or especially grave crimes against the person, terrorist crimes, extremist crimes, crimes committed as part of a criminal group, or crimes against the sexual inviolability of young children, are not granted a postponement of serving their sentence (Part 1 of Article 74 of the Criminal Code);

The period for expungement of the criminal record of persons sentenced to imprisonment is determined by the category of the crime committed (Subparagraphs 3), 4), 5) of Part 3 of Article 79 of the Criminal Code);

The exemption of minors from criminal liability or punishment (Parts 1, 2 and 3 of Article 83 of the Criminal Code) may be applied where minor crimes, crimes of medium gravity and, in certain cases, grave crimes have been committed;

The categorization of crimes is connected with the placement of a minor in educational organizations with a special regime of detention (Part 5 of Article 85 of the Criminal Code), conditional early release of minors from serving their sentences (Article 86 of the Criminal Code), replacement of the unserved portion of a sentence imposed on minors (Article 87 of the Criminal Code), and the periods for expungement of criminal records of minors (Article 89 of the Criminal Code).

Commentary to the Criminal Code of the Republic of Kazakhstan dated 2021, 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 Worker of the Ministry of Internal Affairs of the Republic of Kazakhstan.

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