Commentary on Article 19. Guilt of the Criminal Code of the Republic of Kazakhstan
A person shall be subject to criminal liability only for those socially dangerous acts (actions or omissions) and socially dangerous consequences that have occurred, in respect of which their guilt has been established.
Objective imputation, that is, criminal liability for causing harm without guilt, shall not be permitted.
Only a person who has committed an act intentionally or through negligence shall be recognized as guilty of a criminal offense.
An act committed through negligence shall be recognized as a criminal offense only if this is specifically provided for by the relevant article of the Special Part of this Code.
The establishment of liability only in the presence of guilt is one of the most important principles of criminal law. Its significance is evidenced by the fact that, among the 10 fundamental provisions underlying the administration of justice in the Republic of Kazakhstan, subparagraphs 1), 6), and 8) of paragraph 3 of Article 77 of the Constitution of the Republic of Kazakhstan directly establish the criteria for presuming innocence:
“...1) a person shall be considered innocent of committing a criminal offense until their guilt has been established by a court judgment that has entered into legal force;...
- the accused shall not be obliged to prove their innocence;...
- any doubts concerning a person's guilt shall be interpreted in favor of the accused...”.
The principle of culpable liability is clearly formulated in Article 19 of the Criminal Code. 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 that have occurred, in respect of which their guilt has been established. Without establishing guilt, it is impossible to properly resolve the issue of whether the person's actions contain the elements of a criminal offense and, consequently, whether there are grounds for criminal liability; it is impossible to correctly classify a criminal offense; and, finally, without this, it is impossible to individualize criminal liability and impose a fair and appropriate punishment.
Objective imputation, that is, liability without guilt solely for causing harm to an individual, society, or the State, is alien to criminal law. Part 2 of Article 19 of the Criminal Code emphasizes that objective imputation, that is, criminal liability for causing harm without guilt, shall not be permitted. This means that, however serious the consequences may be, if the person is not guilty of their occurrence, such consequences cannot be attributed to that person.
Thus, guilt as a criminal-law concept is the person's mental attitude toward the socially dangerous act committed by them and its socially dangerous consequences, expressed in the form of intent or negligence. Its constituent elements are consciousness and will. Various combinations of the conscious and volitional elements provided for by criminal law form different manifestations of guilt. Therefore, intellect and will are the elements whose totality constitutes the content of guilt. Legal literature reasonably emphasizes that, since guilt is a legal concept, it should not be excessively psychologized by attempting to assign to the terms used by the legislator to define intent and negligence the same meaning that psychology attributes to them. Psychologists rightly point out the excessive nature of psychological terminology for the theoretical description of legal characteristics required by the legislator and law enforcement practice.
At the same time, great caution must be exercised against excessive “legalization” of guilt and attempts to “empty” it of its psychological content.
The subject matter of guilt, that is, the set of legally significant factual circumstances, the person's mental attitude toward which constitutes the content of guilt, is determined by the structure of the elements of the specific crime.
The content of the intellectual element of guilt depends on the manner in which the criminal offense is described by law. It includes awareness of the nature of the object, the factual content, and the social significance of the action or omission committed. It may be said that, when committing a crime, a person's consciousness encompasses a wide variety of circumstances. However, the subject matter of consciousness as an element of guilt in criminal law consists only of those objective factors that determine the legal characteristics of the particular type of crime, that is, those included among the elements of the crime. For example, in theft, such objective factors are, firstly, the fact that the property being stolen belongs to another person and is therefore чужой to the perpetrator; secondly, the secret method of appropriation; and thirdly, the property damage caused to the owner.
If the legislator includes among the elements of a criminal offense any additional characteristic describing the place, time, method, circumstances, etc., awareness of these additional characteristics of the socially dangerous act also forms part of the content of the intellectual element of guilt.
The subject matter of the perpetrator's volitional attitude is practically the same range of factual circumstances that constitutes the subject matter of the intellectual attitude, that is, circumstances determining the legal essence of the act and, in their totality, forming the elements of the particular crime.
Part 3 of Article 19 of the Criminal Code provides that only a person who has committed an act intentionally or through negligence shall be recognized as guilty of a criminal offense. The legislative definition of the forms of guilt guarantees the implementation of the principle of subjective imputation because, firstly, it confines the person's internal (mental) attitude toward the act committed within strictly formalized boundaries: intent and negligence. Secondly, it constitutes a subjective boundary distinguishing criminal conduct from non-criminal conduct. This primarily concerns the negligent commission of acts that are punishable only when committed intentionally (for example, taking the life of an assailant while exceeding the limits of necessary self-defense (Article 102 of the Criminal Code), or taking the life of a person who has committed an assault while exceeding the measures necessary for the detention of that person (Article 103 of the Criminal Code), constitute the elements of the respective crimes only where the form of guilt is intentional). Thirdly, the form of guilt determines the classification of a crime where the legislator provides for different punishments for the commission of the same socially dangerous act under different forms of guilt. As follows from the Special Part of the Criminal Code, liability for certain crimes is differentiated in criminal legislation depending on the form of guilt with which the act was committed. Thus, increased liability is provided for murder (Article 99 of the Criminal Code), intentional infliction of grievous bodily harm (Article 106 of the Criminal Code), and intentional destruction or damage to another person's property (Article 202 of the Criminal Code), whereas significantly less severe punishment is imposed for the same acts committed through negligence (Article 104, Part 3 of Article 114, and Article 201 of the Criminal Code). Where an article of the Special Part of the Criminal Code does not specify the form of guilt for a particular criminal offense, the determination of the form of guilt, the content of intent, and its direction in such cases must be based on the nature of the socially dangerous act, the method of its commission, and a number of subjective characteristics of the act (motive, purpose, and awareness of the circumstances). For example, Articles 413 of the Criminal Code, “Knowingly Unlawful Release from Criminal Liability”; 414 of the Criminal Code, “Knowingly Unlawful Detention, Taking into Custody, or Keeping in Custody”; and 419 of the Criminal Code, “Knowingly False Reporting of a Crime,” do not specify the form of guilt. However, the reference to the element of “knowingly” in these articles provides grounds to conclude that these crimes can be committed only intentionally. Fourthly, such institutions of criminal law as: 1) preparation for a crime, 2) attempt to commit a crime, 3) complicity, and 4) recidivism are connected exclusively with intentional guilt. Fifthly, the form of guilt is taken into account when categorizing crimes (according to Article 11, only intentional crimes fall into the categories of serious and especially serious crimes), as well as when resolving issues relating to the imposition of punishment and exemption from criminal liability and punishment.
In the practical activities of judicial and investigative authorities, establishing the characteristics of the subjective element of the elements of a committed criminal offense causes certain difficulties. Paragraph 2, second paragraph, of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan “On Certain Issues of Sentencing” states that, when determining the degree of public danger of a committed criminal offense, courts should take into account its gravity as provided for in Article 11 of the Criminal Code and the totality of the circumstances under which it was committed (the method of commission, the form of guilt, motives and purposes, the stage of completion of the act, the degree of public danger of the consequences that occurred, etc.). In this regard, in Part 4 of Article 19 of the Criminal Code, the legislator provided for the following fundamental provision: an act committed through negligence shall be recognized as a criminal offense only if this is specifically provided for by the relevant article of the Special Part of the Criminal Code of the Republic of Kazakhstan.
In conclusion of the consideration of this issue, I would like to note the following: firstly, most countries do not use the concept of guilt at all in their criminal legislation, making do entirely with the concepts of intent and negligence (for example, Germany, Denmark, Spain, Poland, Switzerland, and others).
Secondly, in accordance with Part 4 of Article 19 of the Criminal Code, which states that an act committed through negligence shall be recognized as a criminal offense only if this is specifically provided for by the relevant article of the Special Part of the Criminal Code, such criminal offenses may theoretically be committed either intentionally or through negligence. However, the absence of an indication of negligence in the disposition of an article of the Special Part of the Criminal Code does not in itself constitute evidence that a criminal offense may be committed with either form of guilt. In order to establish the meaning of the law in such cases, it is necessary to resort to its interpretation and the use of specialized knowledge.
Thirdly, due to the difficulty of determining the form of guilt in certain types of crimes, courts often evade resolving this issue and leave unexamined the question of whether the criminal offense in a particular case was committed intentionally or through negligence. As a result, cases of imposing punishment without taking the form of guilt into account have become widespread, insurmountable difficulties arise in determining the type of regime for serving a sentence of imprisonment, and certain other practical issues remain unresolved.
Fourthly, it may be said that Part 4 of Article 19 of the Criminal Code effectively legalizes the existence of statutory provisions based on equal punishability for intentional and negligent forms of guilt, which is inconsistent with the principle of limited liability for negligent crimes.
In light of the foregoing, it is necessary to conduct a mandatory review of the extent to which Part 4 of Article 19 of the Criminal Code is fully implemented in the provisions of the Special Part of the Criminal Code.
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 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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