Commentary on Article 110. Torture under the Criminal Code of the Republic of Kazakhstan

1. Infliction of physical or mental suffering through the systematic infliction of beatings or other violent acts, provided that such act has not resulted in the infliction of serious or moderate bodily harm, —

shall be punishable by a fine in an amount of up to one thousand monthly calculation indices, or correctional labour in the same amount, or community service for a period of up to six hundred hours, or restriction of liberty for a period of up to two years, or deprivation of liberty for the same period.

2. The same act committed:

1) against a person who is knowingly a minor, or a person who is knowingly in a helpless state or in material or other dependence on the perpetrator, as well as a person who has been abducted or taken hostage;

2) against two or more persons;

3) against a woman whose state of pregnancy is knowingly known to the perpetrator;

4) with the use of torture;

5) for hire;

6) on the grounds of social, national, racial or religious hatred or enmity, —

shall be punishable by restriction of liberty for a period of four to seven years or deprivation of liberty for the same period.

The public danger of torture lies in the fact that it infringes upon a right protected by criminal law — the right to human health — through the use of violence, cruel treatment or treatment that humiliates human dignity.

The establishment of criminal liability for torture reflects the intention of the legislator of Kazakhstan to comply with the fundamental international instruments. Currently, the International Covenant on Civil and Political Rights, adopted by the UN General Assembly on 16 December 1996, is in force with regard to issues concerning torture and other forms of cruel treatment. Article 7 of the Covenant states: “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” Article 5 of the 1948 Universal Declaration of Human Rights is also devoted to this issue. The 1950 European Convention on Human Rights establishes provisions aimed at preventing torture and inhuman or degrading treatment or punishment.

Pursuant to paragraph 2 of Article 17 of the Constitution of the Republic of Kazakhstan, no one shall be subjected to torture, violence or other cruel or degrading treatment or punishment.

The object of the crime is human health.

The objective side consists in inflicting physical or mental suffering on the victim through the systematic infliction of beatings or the commission of other violent acts, provided that this has not resulted in the infliction of serious or moderate bodily harm.

One of the methods of torture is the infliction of physical or mental suffering through the systematic infliction of beatings. In criminal law, “systematic nature” means the commission of unlawful acts at least three times. In relation to torture, the systematic infliction of beatings means not merely the repeated commission of periodic violent acts, but also their interconnection and internal unity, forming a particular pattern of the perpetrator’s conduct towards one and the same victim, as a result of which the latter suffers physical pain and mental distress.

Beatings are the infliction of blows or the commission of other violent acts that cause physical pain but do not result in bodily harm. An obligatory element of the infliction of beatings is their systematic nature, i.e. their commission three or more times. Each episode consists of multiple blows.

Another method of torture is the infliction of physical and mental suffering through other violent acts, such as prolonged deprivation of food, water or warmth, placing or leaving the victim in conditions harmful to their health, and other similar acts, as well as acts involving the repeated and systematic infliction of pain (pinching, whipping, infliction of multiple minor injuries using various blunt and sharp objects, exposure to chemical and physical factors, etc.). By its structure, the corpus delicti is formal.

Systematic beatings or other violent acts are classified as torture provided that they result in consequences in the form of physical or mental suffering. Suffering means physical pain or psychological trauma of a profound nature, causing torment and particular distress to the victim. It is associated not only with experiencing pain at the moment when the perpetrator commits the acts, but also with the emergence of a feeling of insecurity and fear for one's future, as well as the perception that repeated violence by the perpetrator is inevitable.

Torture encompasses the infliction of minor bodily harm, which was excluded from the Criminal Code by the Law of the Republic of Kazakhstan dated 3 July 2017 and transferred to the Code of Administrative Offences of the Republic of Kazakhstan. At the same time, the infliction of moderate or serious bodily harm in the course of torture falls outside the scope of the elements of the crime provided for in Article 110 of the Criminal Code and requires qualification under the relevant parts of Articles 106 and 107 of the Criminal Code, taking into account the aggravating element of “particular cruelty”.

The crime shall be considered completed from the moment physical and (or) mental suffering is inflicted on the victim.

The subjective side is characterised by direct intent, i.e. the perpetrator is aware that, through the systematic infliction of beatings or other violent acts, they are causing physical or mental suffering to the victim, foresees the possibility or inevitability of such consequences and desires their occurrence.

The motives for the crime may vary (revenge, jealousy, hostile relations, etc.).

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

The aggravated forms of this crime include the commission of the same act: 1) against a person who is knowingly a minor, or a person who is knowingly in a helpless state or in material or other dependence on the perpetrator, as well as a person who has been abducted or taken hostage; 2) against two or more persons; 3) against a woman whose state of pregnancy is knowingly known to the perpetrator; 4) with the use of torture; 5) for hire; 6) on the grounds of social, national, racial or religious hatred or enmity.

Since the content of most of the listed qualifying elements of the act was explained in the analysis of the elements of murder provided for in paragraph 2 of Article 99 of the Criminal Code, and some of them were examined in the analysis of paragraph 2 of Article 107 of the Criminal Code, we shall analyse only certain individual elements.

The victim’s material dependence is обусловлена by their being fully or partially maintained by the perpetrator (often, such victims are minors), or by the perpetrator providing for the victim of their criminal act, meaning that the victim’s financial situation depends on the perpetrator. Other forms of dependence may arise from various relationships: employer — subordinate, coach — athlete, children — parents, etc.

Torture involving the use of torture methods means cases in which various methods of воздействие on the human body are used to inflict physical or mental suffering on the victim, and such воздействие results in severe pain and suffering (for example, torture with electric current, red-hot iron, etc.). In this case, additional qualification under Article 146 of the Criminal Code is not required.

The determination of whether torture has taken place or not falls within the competence of law enforcement authorities, rather than forensic medical examination.

Torture may include particularly sophisticated methods of воздействие on the human body. Torture means any act by which severe physical or mental pain and suffering are intentionally inflicted on a person in order to obtain information or a confession from that person or a third party.

Torture committed through the use of torture methods must be distinguished from the act provided for in Article 146 of the Criminal Code. Pursuant to paragraph 16-1 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated 28 December 2009, “On the Application of the Provisions of Criminal and Criminal Procedure Legislation Concerning the Observance of Personal Liberty and the Inviolability of Human Dignity, and Combating Torture, Violence and Other Forms of Cruel or Degrading Treatment and Punishment”, it is necessary to distinguish between acts provided for in Article 146 and subparagraph 4) of paragraph 2 of Article 110 of the Criminal Code.

The provision stipulated in Article 146 of the Criminal Code is a special provision in relation to the provision stipulated in subparagraph 4) of paragraph 2 of Article 110 of the Criminal Code. In this regard, where all the elements provided for in the disposition of paragraph 1 of Article 146 of the Criminal Code are established, namely: the existence of a special subject of torture; the existence of the purpose of torture — to obtain information or a confession from the person being tortured or another person, or to punish that person for an act committed by them or another person, or for an act of which they or another person are suspected, as well as to intimidate or coerce that person or a third party, or for any reason based on discrimination of any kind, the act is fully covered by the disposition of Article 146 of the Criminal Code, and additional qualification under subparagraph 4) of paragraph 2 of Article 110 of the Criminal Code is not required.

The infliction of physical or mental suffering through the use of torture, if it contains all the elements provided for in the disposition of paragraph 1 of Article 146 of the Criminal Code, shall be qualified under the relevant part of Article 146 of the Criminal Code and cannot be qualified as torture under subparagraph 4) of paragraph 2 of Article 110 of the Criminal Code.

The act provided for in Part I of Article 110 of the Criminal Code belongs to the category of minor offences.

The act provided for in Part 2 of Article 110 of the Criminal Code belongs to the category of serious crimes.

Commentary (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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