Commentary on Article 13. Aggregate of Criminal Offenses under the Criminal Code of the Republic of Kazakhstan

An aggregate of criminal offenses shall be recognized as the commission of two or more acts provided for by different articles or parts of an article of this Code, none of which the person has been convicted of or released from criminal liability on grounds established by law. In the event of an aggregate of criminal offenses, a person shall bear criminal liability for each act committed under the relevant article or part of an article of this Code, unless the elements of these acts are covered by the provision of one article or part of an article of this Code providing for a more severe punishment.

An aggregate of criminal offenses shall also be recognized where a single act (omission) contains the elements of criminal offenses provided for by two or more articles of this Code. In such an aggregate, a person shall bear criminal liability for each act committed under the relevant articles of this Code, unless the elements of one act are covered by the provision of an article of this Code providing for a more severe punishment for another act.

If one and the same act falls under the elements of both a general and a special provision of the relevant articles of this Code, there is no aggregate of criminal offenses, and criminal liability shall arise under the article of the Special Part of this Code containing the special provision.

Pursuant to Part 1 of Article 13 of the Criminal Code of the Republic of Kazakhstan, an aggregate of criminal offenses shall be recognized as the commission of two or more acts provided for by different articles or different parts of an article of the Criminal Code of the Republic of Kazakhstan, none of which the person has been convicted of or released from criminal liability on grounds established by law.

Based on this definition, the following characteristics of an aggregate of criminal offenses may be identified:

Commission of two or more criminal offenses by a person;

Each act committed is classified under different articles or different parts of an article of the Criminal Code of the Republic of Kazakhstan, taking into account the intent to commit an independent criminal offense;

The person must not have been convicted of any of the criminal offenses committed or released from criminal liability on grounds established by law.

Where a guilty person commits socially dangerous acts constituting an aggregate, the elements of two or more criminal offenses are present. The acts committed by the guilty person must fall under the elements of criminal offenses provided for by different articles of the Special Part of the Criminal Code or by different parts of the same article.

An essential condition for recognizing an aggregate of criminal offenses is that the person has not been convicted of any of the acts included in it. Otherwise, this will not constitute an aggregate but rather recidivism of crimes, provided that the conditions stipulated in Article 14 of the Criminal Code are present. In addition, the limitation periods for bringing criminal charges in respect of the criminal offenses included in the aggregate must not have expired, and the person must not have been released from criminal liability for any of these offenses on grounds established by law.

Paragraph 6 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan “On the Classification of Repeated and Aggregate Criminal Offenses” emphasizes: “If the guilty person has been convicted of certain criminal offenses committed or released from liability on grounds provided for by criminal law, such criminal offenses cannot form part of an aggregate with other criminal offenses being considered in the case. This circumstance may be taken into account when imposing punishment.”

An aggregate of criminal offenses shall also exist where a person commits homogeneous acts, some of which are classified as completed criminal offenses, while others constitute preparation for, an attempt to commit, or complicity in a criminal offense.

An aggregate of criminal offenses may consist of criminal offenses committed by one or several acts, either at different times or simultaneously. In this regard, two types of aggregate of criminal offenses are distinguished: real and ideal.

A real aggregate of criminal offenses is formed when one person commits two or more criminally punishable acts, each of which contains the elements of a particular criminal offense provided for by different articles (parts of articles) of the Special Part of the Criminal Code. In an ideal aggregate, one act of the guilty person contains the elements of at least two different criminal offenses provided for by two or more articles or parts of an article of the Criminal Code, and the entire conduct, taken as a whole, is not fully covered by any of these provisions of criminal law.

It should be noted that the characteristics of the legal institution of the aggregate of criminal offenses are provided for in the General Part of the Criminal Code of the Republic of Kazakhstan; however, when classifying specific criminal offenses, issues relating to the aggregate of criminal offenses are considered in its Special Part. In this regard, where the guilty person commits several identical criminal offenses for which liability is provided for by different parts of the same article, the act, in accordance with Part 2 of Article 13 of the Criminal Code, should be classified under the part of the article providing for the more severe punishment, with all qualifying elements specified.

The division of aggregates into ideal and real aggregates has not only theoretical but also significant practical importance. First, the existence of a real aggregate generally indicates a greater degree of public danger posed by the person who committed the criminal offense, which may result in the court imposing a more severe punishment, since, in the case of a real aggregate, the commission of the first criminal offense may be recognized as an aggravating circumstance when imposing punishment for the second criminal offense (Subparagraph 1) of Part 1 of Article 54 of the Criminal Code). Second, the limitation period for bringing a person to criminal liability is calculated differently in cases of ideal and real aggregates.

The following characteristics are typical of a real aggregate:

the existence of two or more individual criminal offenses;

commission of criminal offenses through two or more independent acts;

all criminal offenses are classified under different articles or parts of an article of the Criminal Code of the Republic of Kazakhstan.

An example of a real aggregate of criminal offenses may be the following: a person commits theft under Part 1 of Article 188 of the Criminal Code, and several days later the same person intentionally inflicts grievous bodily harm under Part 1 of Article 106 of the Criminal Code.

A real aggregate is characterized by the commission of criminal offenses at different times. The time interval may, in some cases, be considerable, even extending over several years, provided that the limitation period for bringing criminal liability for the first criminal offense has not expired. In other cases, the interval may be insignificant. There may also be no time interval between criminal offenses. Such cases arise when one of the criminal offenses is continuing in nature. For example, when committing an armed robbery (Article 192 of the Criminal Code), a person uses a pistol that he has been illegally keeping (Part 1 of Article 287 of the Criminal Code).

A real aggregate of criminal offenses is possible where the offenses infringe upon different protected legal interests (murder and bodily injury) or similar legal interests.

Unlike a real aggregate, an ideal aggregate is the commission by a person of two or more criminal offenses provided for by different articles of the Criminal Code through a single act. This type of aggregate of criminal offenses is expressly provided for in Part 2 of Article 13 of the Criminal Code.

The characteristics of an ideal aggregate are:

the existence of only one act;

socially dangerous consequences provided for by different articles or parts of an article of the Criminal Code of the Republic of Kazakhstan.

For the existence of an ideal aggregate, it is irrelevant whether the act committed by the guilty person is a single, one-time act or develops over a more or less extended period of time.

In an ideal aggregate, the act through which the offender commits two or more criminal offenses sometimes takes the form of a single, isolated action. An example of such an ideal aggregate is the arson of a house for the purpose of killing a person inside it — two criminal offenses are committed through one act: 1) intentional destruction or damage to another person's property by arson (Subparagraph 1) of Part 2 of Article 202 of the Criminal Code); 2) murder (Article 99 of the Criminal Code). For the proper classification of the conduct, the decisive factor is whether the guilty person had the intent to cause the death of the person inside the house. Classification under the aggregate of the above-mentioned articles is possible if the intent was directed at depriving a person of life. If there was no intent to commit murder, the conduct, where the relevant circumstances are present, shall be classified as a single criminal offense (Subparagraph 1) of Part 3 of Article 202 of the Criminal Code).

An ideal aggregate of criminal offenses also includes cases where, through a single act, a person attempts to commit one criminal offense while simultaneously fulfilling the elements of another completed criminal offense. Thus, D., motivated by revenge, fired a rifle at B. but missed. The shot hit a fuel tanker and caused a fire followed by an explosion. In the example given, D. committed two criminal offenses through a single act (firing a rifle at B.): attempted murder (Part 3 of Article 24, Part 1 of Article 99 of the Criminal Code) and negligent destruction or damage to another person's property (Article 204 of the Criminal Code).

Of particular importance for the proper classification of criminal offenses is the issue of distinguishing an ideal aggregate, in which the conduct is classified under two or more articles, from a single composite criminal offense, in which the conduct is classified under one article despite the presence of two objects and different consequences.

When distinguishing an ideal aggregate of criminal offenses from a continuing criminal offense subject to classification under one article (part of an article of the Criminal Code), it is necessary to determine whether the objects infringed upon and the consequences resulting from the criminal offense are provided for by one or several criminal law provisions, and also to take into account how the subjective element of each of the acts committed is characterized.

Continuing crimes are crimes consisting of a series of identical criminal acts directed toward a common objective and constituting, in their totality, a single crime. The episodes forming a continuing crime, even if they contain the elements of an independent crime, nevertheless have no independent significance, since they are merely stages in the implementation of the guilty person's single criminal intent.

A specific intent is characteristic of a continuing crime. Where there is a specific intent, an act may be classified as a completed crime only upon the full realization of the guilty person's intent. Therefore, a continuing crime is deemed completed from the moment the last of the acts is committed. Individual episodes of a continuing crime are not subject to independent classification as an aggregate of crimes. If the guilty person's intent was unspecified, the identical criminal acts committed by that person are subject to independent assessment or may be classified as acts committed repeatedly. If they contain the elements of independent crimes, classification under the aggregate of crimes is required.

Continuing offenses constitute a single crime and also exclude the classification of the conduct as an aggregate of crimes.

Where an infringement is committed against several legally protected interests specified in different articles of the Criminal Code, and the object specified in one article is not part of the object specified in another article, the conduct should be classified as an aggregate of criminal offenses under the relevant articles of the Criminal Code providing for liability for the infringement of each object. Acts differing in the subject matter of the infringement are subject to similar classification (for example, where the same person steals items of special value and, in addition, steals other property, the first act is subject to classification under Article 193 of the Criminal Code, and the other act under another relevant article of the Criminal Code).

Where different socially dangerous consequences of a criminal offense are not provided for by a single applicable provision of criminal law and relate to the direct objects of different criminal offenses, the act should be classified as an aggregate of criminal offenses under the relevant articles of the Criminal Code establishing liability for each criminal offense.

An ideal aggregate may include crimes provided for by different parts of the Criminal Code, provided that those parts establish the elements of separate independent crimes rather than variations of the elements of the same crime.

It should be noted that cases in which conduct may be classified under several parts of the same article in an ideal aggregate, where those parts contain the elements of independent crimes, are relatively rare. This is explained by the general concept underlying the structure of the Criminal Code, whereby one article of the Special Part of the Criminal Code generally contains the elements of only one crime, and where it contains several, they are such that they cannot be committed through a single act (omission).

At the same time, it is difficult to agree with the classification proposed in the second paragraph of Paragraph 9 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated June 29, 2011, “On the Practice of Applying Criminal Legislation in Cases Involving Violations of Traffic Rules and the Rules for the Operation of Vehicles,” concerning cases where two or more persons are injured as a result of a traffic accident. According to that provision: “If, as a result of a violation of traffic rules or the rules for the operation of vehicles, harm is simultaneously caused through negligence to the health of one or several persons, as well as the death of one or several persons, the act as a whole shall be classified under the relevant part of Articles 345 and 346 of the Criminal Code providing for more serious consequences. In this case, the less serious consequences caused by the same act must be specified in the indictment and in the judgment.”

It appears that if, as a result of a traffic accident, one person suffers, for example, grievous bodily harm, while another person dies, the conduct should be classified under Parts 2 and 3 of Article 345 of the Criminal Code, since these parts of Article 345 of the Criminal Code contain independent elements of crimes rather than variations of the elements of one crime, and not under Part 3 of Article 345 of the Criminal Code, as recommended by the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan.

The provisions of Part 2 of Article 13 of the Criminal Code, which stipulate that only acts (omissions) whose elements of criminal offenses are provided for by two or more articles of the Criminal Code are recognized as an aggregate of criminal offenses, should be critically assessed, and the legislator has something to consider. I am convinced that an ideal aggregate may also include criminal offenses provided for by different parts of an article of the Criminal Code, provided that those parts establish the elements of separate independent criminal offenses rather than variations of the elements of the same criminal offense. Parts 2 and 3 of Article 345 of the Criminal Code contain precisely such separate crimes rather than variations of the elements of one crime. Part 2 of Article 345 of the Criminal Code provides for the infliction of grievous bodily harm as a consequence, while Part 3 of Article 345 provides for causing death. Classification in the situation under consideration solely under Part 3 of Article 345 of the Criminal Code leaves the infliction of grievous bodily harm on one of the victims without legal assessment.

If an act committed by a person contains elements of a crime falling under different parts of one article that provide not for independent elements of crimes but for variations of the same crime, an ideal aggregate is not formed. Thus, misappropriation or embezzlement of entrusted property belonging to another person, committed by a group of persons by prior agreement on a large scale, is classified not under the aggregate of Part 2 of Article 189 and Part 3 of Article 189 of the Criminal Code, but under Part 3 of Article 189 of the Criminal Code.

An aggregate of crimes is not formed where one crime develops into another, more serious crime, that is, where the guilty person's intent is transformed during the commission of a crime before it is fully completed. In this case, the conduct should be classified under the article providing for liability for the more serious crime. However, if the guilty person's intent is transformed only partially, while the other part continues to be implemented by the guilty person, their actions should be classified as an aggregate of crimes. For example, if, in the course of extortion, the guilty person immediately takes possession of part of the victim's property while demanding that another part be transferred in the future under threat of violence, the conduct should be classified as an aggregate of crimes under Articles 190 (or 192) and 194 of the Criminal Code, since in this case a real aggregate of crimes is formed, requiring classification under two articles of the Criminal Code.

In Part 3 of Article 13 of the Criminal Code, the legislator explains the concept of competition between general and special provisions, which does not constitute an aggregate. In legal scholarship, competition of provisions is considered to exist where one and the same act falls within the scope of several articles of the Special Part of the Criminal Code of the Republic of Kazakhstan. In the case of competition of provisions, unlike an aggregate, only one criminal offense is committed, and the court must select one of several articles of the Criminal Code under which the conduct should be classified.

A general provision is a generalized concept encompassing numerous varieties. A variety distinguished from a general provision becomes a special provision, which possesses all the essential characteristics of the general provision and specifies one or several of those characteristics. Under such a relationship, the range of socially dangerous acts covered by the special provision becomes narrower, while the number of its characteristics describing these antisocial acts increases.

Where a general and a special provision compete, the special provision must be applied.

If one and the same act falls under the elements of both a general and a special provision of the relevant articles of the Criminal Code of the Republic of Kazakhstan, there is no aggregate of criminal offenses, and criminal liability arises under the article of the Special Part of the Criminal Code containing the special provision. For example, Article 361 of the Criminal Code provides for liability for abuse of official powers (general provision), while Article 366 provides for liability for accepting a bribe (special provision). At the same time, the legislator recognizes the second criminal offense as more serious than the first. In this case, there is no aggregate of criminal offenses, and the act is classified under Article 366 of the Criminal Code.

A characteristic feature of competition between general and special provisions is that, if the special provision is removed from criminal legislation, liability for the act previously covered by that special provision is not abolished. Liability remains within the framework of the general provision.

In cases of competition between provisions containing qualified and especially qualified elements, the provision containing the especially qualified elements of the criminal offense must be applied. For example, counterfeiting committed on a large scale by a criminal group should not be classified under the aggregate of Part 2 of Article 231 of the Criminal Code, which provides for large scale as a qualifying element, and Part 3 of the same article, which provides for commission of the act by a criminal group as an especially qualifying element. In this case, the actions of the guilty persons are classified only under Part 3 of Article 231 of the Criminal Code, which contains the especially qualified elements, although the wording of the charge must include all qualifying elements constituting both the qualified and especially qualified elements.

In the case of competition between two privileged elements (elements involving mitigating circumstances), priority is given to the most privileged one. For example, the actions of a person who, while in a state of passion, exceeds the limits of necessary defense and thereby kills the attacker fall under two articles: Articles 101 and 102 of the Criminal Code. Article 102, which provides for less severe liability, must be applied.

Competition between provisions containing qualified and privileged elements is resolved in favor of the provision containing the privileged elements. Thus, if a person commits the murder of two persons while in a state of sudden and intense emotional disturbance caused by the unlawful actions of the victims, their actions should be classified not under Subparagraph 1) of Part 2 of Article 99 of the Criminal Code, but under Part 2 of Article 101 of the Criminal Code.

Where an act contains the elements of a criminal offense specified in an article of the Criminal Code providing for liability for a qualified offense (for example, particular cruelty in murder), as well as other elements that constitute grounds for classifying the same act under mitigating circumstances (for example, a state of passion), there is no aggregate of criminal offenses. In such cases, the act is subject to classification under the article of the Criminal Code providing for less severe liability for the commission of that criminal offense (for example, murder committed with particular cruelty while in a state of passion is subject to classification only under Article 101 of the Criminal Code).

If the method used to commit a crime is more dangerous than the method of committing the crime for which it is used, classification under an aggregate of crimes is required. Most often, such a method involves violence (in this regard, the actual content of the violence is most frequently established by analyzing the sanction), and less frequently, the use of official position and deception or abuse of trust. For example, if violence up to the infliction of moderate bodily harm is used to involve a person in antisocial activities, the conduct is covered by Part 3 of Article 133 of the Criminal Code and does not require classification under an aggregate. However, where grievous bodily harm is inflicted, classification under the aggregate of Part 3 of Article 133 and the relevant part of Article 106 of the Criminal Code is required.

The commission of several acts alternatively provided for within a single element of a crime, the commission of any one of which constitutes a completed crime, does not form an aggregate. The crime is classified as a single offense whether one or several such acts are committed, as well as where one of the acts remains incomplete.

The conjunction of one criminal offense with another means a mutual connection between criminal offenses, whereby the commission of one criminal offense is accompanied by the commission of another criminal offense. In such cases, the guilty person commits acts (with or without a time interval) directed toward carrying out each of the criminal offenses.

The conjunction of criminal offenses in the case of their real aggregate (that is, where they are committed through several acts of the guilty person), as well as in the case of their ideal aggregate (where one act or omission contains the elements of criminal offenses provided for by two or more articles of the Criminal Code), in accordance with Article 13 of the Criminal Code, entails the separate classification of each criminal offense under the relevant article of the Criminal Code.

Where several heterogeneous criminal offenses forming an aggregate are committed through several successive acts of the guilty person, and the commission of the first of them constitutes grounds for classifying the second criminal offense under the qualifying element of being connected with the first criminal offense (for example, where robbery, extortion, banditry, rape, or acts of a sexual nature are first committed against a victim, followed by their murder), each criminal offense is subject to independent classification under the relevant article of the Criminal Code.

Criminal offenses forming an aggregate are subject to similar classification where the first criminal offense (for example, murder) is committed for the purpose of facilitating the subsequent commission of a second criminal offense (for example, theft), or where, after committing the first criminal offense (for example, rape), the guilty person commits another criminal offense (for example, murder) for the purpose of concealing the first one (Paragraph 17 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated December 25, 2006).

If the provision of criminal law applicable to a particular case, while referring to an aggregate of criminal offenses, fully covers all the elements of each of the criminal offenses committed and provides for the occurrence of the socially dangerous consequences of each of them, the conduct as a whole is subject to classification under the relevant article of the Criminal Code providing for liability for the commission of the more serious criminal offense with this qualifying element.

A typical example is robbery (Article 192 of the Criminal Code), one of the mandatory elements of which is the use of violence dangerous to the life and health of the victim. If, during a robbery, the guilty person causes bodily harm to the victim, it is not necessary to classify their actions under the aggregate of articles of the Criminal Code providing for liability for the infliction of grievous bodily harm. In this case, the provision that provides the most comprehensive legal assessment of the entire conduct, namely Article 192 of the Criminal Code, shall apply.

Where a person commits completed criminal offenses as well as criminal offenses interrupted at one stage or another of their commission, they cannot be classified under a single article of the Criminal Code. In such cases, the incomplete criminal offense is classified under the relevant article (part of an article) of the General Part of the Criminal Code and the article (part of an article) of the Special Part of the Criminal Code, while the completed criminal offense is classified under the article of the Criminal Code providing for liability for that criminal offense.

For the purpose of ensuring the proper classification of acts included in an aggregate in each specific case, all circumstances of the case must be carefully examined, the sequence in which the criminal offenses were committed must be established, the motives, objectives, and form of guilt must be identified, and the dispositions of each provision of criminal law must be analyzed and compared in order to determine whether the elements of one act, liability for which is provided for by one article of the Criminal Code, are covered by the disposition of another article providing for liability for another criminal offense included in the aggregate. In this regard, the elements of a criminal offense should be understood as those characteristics that constitute its elements: the object, the objective aspect, the subject, and the subjective aspect.

The difference between the elements constituting the composition of a criminal offense and the qualifying elements of a criminal offense is that the absence of even one of the elements of the composition of a criminal offense excludes recognition of the act as a criminal offense, whereas the absence of qualifying elements provides grounds for classifying the act under a provision of law providing for less severe liability for the commission of the same criminal offense (the basic elements).

In conclusion, I would like to share my opinion with the legislator. Pursuant to Part 1 of Article 12 of the Criminal Code, a crime and a criminal misdemeanor do not constitute repetition of offenses in relation to each other. In this regard, how justified is it to recognize an aggregate where a crime and a criminal misdemeanor are committed? After all, a person is held liable for a crime and a criminal misdemeanor in separate proceedings, and the punishment is enforced independently. Moreover, a criminal misdemeanor does not entail a criminal record, and no punishment in the form of deprivation of liberty is provided for it, whereas, under the current Criminal Code, where a crime and a criminal misdemeanor are committed as an aggregate, a sentence of deprivation of liberty may be imposed for the aggregate and a single criminal record may arise.

If my view of this issue is justified, the legislator should supplement Article 13 of the Criminal Code with the following provision: “A crime and a criminal misdemeanor shall not constitute an aggregate of criminal offenses.”

Commentary to the Criminal Code of the Republic of Kazakhstan dated 2021 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 Reform of the Law Enforcement System under the Security Council of the Republic of Kazakhstan, Honored Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.

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