Commentary on Article 20. An Intentional Criminal Offense of the Criminal Code of the Republic of Kazakhstan

A criminal offense committed intentionally is an act committed with direct or indirect intent.

A criminal offense shall be deemed to have been committed with direct intent if the person was aware of the social danger of his or her actions (inaction), foresaw the possibility or inevitability of socially dangerous consequences, and desired their occurrence.

A criminal offense shall be deemed to have been committed with indirect intent if the person was aware of the social danger of his or her actions (inaction), foresaw the possibility of socially dangerous consequences, did not desire their occurrence but consciously allowed them to occur or was indifferent to them.

Pursuant to Part 1 of the Article under commentary, a criminal offense committed intentionally is an act committed with direct or indirect intent. The division of intent into direct and indirect intent is made depending on its content. The content of direct and indirect intent is disclosed in Parts 2 and 3 of Article 20 of the Criminal Code.

The practical significance of dividing guilt into forms lies in the fact that, alongside other elements of the corpus delicti of a criminal offense, the legislator and the administration of justice use the form of guilt to differentiate all criminal offenses, distinguishing between more serious and less serious ones. The form of guilt also helps distinguish culpable acts from non-culpable ones. The form of guilt is taken into account when resolving a wide range of issues, including the categorization of crimes (Article 11 of the Criminal Code), complicity (Article 27 of the Criminal Code), preliminary criminal activity (Article 24 of the Criminal Code), and sentencing (Articles 58 and 59 of the Criminal Code), etc.

Different forms of guilt reflect the different psychological attitudes of the subject toward the criminal offense committed, which is important when determining his or her individual liability. Guilt is always expressed in one form or another. There can be no guilt in general without specifying its form.

Pursuant to Part 2 of the Article under commentary, a criminal offense is deemed to have been committed with direct intent if the person was aware of the social danger of his or her actions (inaction), foresaw the possibility or inevitability of socially dangerous consequences, and desired their occurrence; whereas it is deemed to have been committed with indirect intent if the person was likewise aware of the social danger of his or her actions (inaction), foresaw the possibility of socially dangerous consequences, but did not desire their occurrence, consciously allowed them to occur, or was indifferent to them (Part 3).

Based on the content of the elements of direct intent, the following characteristics may be identified:

awareness by the person of the socially dangerous nature of the act being committed (action or inaction);

foresight of the occurrence or possibility of occurrence of these consequences;

desire for these consequences to occur.

The first two characteristics constitute the intellectual element of intent.

When describing the intellectual element of intent, the legislator first refers to the person's awareness of the socially dangerous nature of his or her conduct. Whereas knowledge primarily belongs to the realm of memory, consciousness characterizes the process of perception and comprehension. It is presumably in this sense that the legislator used the word “awareness” to characterize the intellectual aspect of intent. In order to establish that a person was aware of the socially dangerous nature of his or her actions (inaction), it is sufficient to establish that the person understood, in general terms rather than in detail, the harm caused by his or her conduct. When firing a shot from a pistol, the offender must understand that, as a result, he or she may deprive another person of life.

The legislator does not include awareness of the criminal unlawfulness of the actions being committed in the content of intent. However, awareness of the social danger of an act also includes awareness of its unlawfulness, that is, the person must know that he or she is acting unlawfully and illegally. At the same time, awareness of the unlawfulness of an act must not be confused with knowledge of criminal law. Ignorance of criminal law does not exempt a person from liability. Awareness of unlawfulness, however, implies that the person understands that his or her encroachment upon a particular protected interest is generally illegal. Thus, when committing robbery, the offender is aware that he or she is unlawfully taking possession of another person's property. If a person mistakenly believes that he or she is taking his or her own property, intent is excluded.

In the theory of criminal law, the prevailing view to this day is that awareness of unlawfulness does not form part of the content of intent. This understanding took shape during the period when the Criminal Codes of the Union Republics enshrined a material definition of crime that lacked the formal element — an indication of the unlawfulness of the act — and the application of analogy in criminal law was permitted. However, after the formal-material definition of crime was incorporated into the Criminal Code, the element of unlawfulness became just as fully-fledged an element as social danger, guilt, and punishability.

The second intellectual element of direct intent is foresight of the socially dangerous consequences of the act committed.

Foresight of socially dangerous consequences means the person's mental representation of the results of his or her actions (inaction). A person's foresight of socially dangerous consequences means not only anticipating the factual characteristics of the consequences that occur, but also understanding their social significance, that is, their harmfulness to the individual, society, and the State.

With direct intent, a person foresees the possibility or inevitability of socially dangerous consequences. When firing a shot at close range into another person's vital organs, the offender foresees that the person's death is inevitable. If the offender shoots another person from a considerable distance, he or she foresees only the possibility of the victim's death. Thus, foresight of socially dangerous consequences may be expressed not only in the person's awareness of the inevitability of their occurrence but also in the foresight of the possibility that such consequences may occur.

Foresight of the inevitability of socially dangerous consequences is characteristic of direct intent. The intention characteristic of direct intent to achieve a particular result is associated with the mandatory condition that such an intention is capable of being realized. From the perspective of a person acting with direct intent, this is possible if the planned consequences are bound to occur. It is precisely confidence in the inevitability and закономерность of the occurrence of consequences that motivates the offender to act in order to achieve them.

The volitional element of direct intent is characterized by the desire for the consequences foreseen by the person to occur. In psychological science, desire is defined as a purposeful aspiration. The criminal result achieved in this regard is either the sole objective pursued by the offender (for example, murder out of revenge) or a necessary means of achieving another objective (for example, murder for the purpose of concealing traces of another criminal offense).

Foresight of the consequences of one's actions may vary in nature. Foresight may be less clear. To a considerable extent, this depends on how clearly the specific circumstances were perceived by the person and how much they were taken into account when initially deciding to commit a socially dangerous act. To a significant degree, this also depends on the individual's personal characteristics and peculiarities, mental abilities, emotional state, etc.

The definition of intent in criminal legislation is oriented toward criminal offenses with a material composition, and desire is linked exclusively to socially dangerous consequences in which the harm caused to the protected interest is embodied. In this regard, a question frequently arises in criminal law theory and judicial practice as to whether intent can be divided into direct and indirect intent in relation to so-called crimes with a formal composition. In my opinion, the wording of the law intended for material compositions cannot be mechanically applied to crimes with a formal composition. The objective element of a formal composition is exhausted by the commission of a socially dangerous action (inaction) by the offender, that is, the consequences lie beyond the scope of its objective element and cannot be the subject of either an intellectual or a volitional attitude. In the case of a crime with a formal composition, the fact that a person is aware that he or she is committing a socially dangerous act implies a desire to commit that act. An action performed by a person is always desirable to that person, unless it was committed under the influence of irresistible force, physical coercion, or other circumstances that exclude freedom of will.

Thus, in crimes with a formal composition, the objective element that embodies the social danger of the act is, in all cases, the prohibited action or inaction itself.

It seems to me that the legislator of our country should enshrine in criminal legislation the concept of intent in crimes with a formal composition as a conscious and volitional attitude specifically toward the actions (inaction). There is positive experience in this regard in the Criminal Code of the Republic of Belarus. In particular, Article 24 of the Criminal Code of the Republic of Belarus provides that, in “a crime for which the occurrence of socially dangerous consequences is not required, the form of guilt shall be determined by the person's attitude toward the socially dangerous act.” Part 2 of that Article states: “A crime shall be deemed to have been committed intentionally if the person who committed it was aware of the socially dangerous nature of his or her action or inaction and desired to commit it,” that is, the object of desire is the socially dangerous act itself, and direct intent is the only possible type of intent in such crimes under the Criminal Code.

Indirect intent is characterized by the fact that the person was aware of the social danger of his or her actions (inaction), foresaw the possibility of socially dangerous consequences, did not desire their occurrence, but consciously allowed them to occur or was indifferent to them.

The characteristics of indirect intent are:

awareness;

foresight;

allowance of the socially dangerous consequences of the criminal act.

With indirect intent, a person foresees only the possibility of socially dangerous consequences. The degree of probability of the predicted consequences under direct intent is higher than under indirect intent. Unlike direct intent, a person acting with indirect intent does not desire the occurrence of socially dangerous consequences; they are neither the ultimate nor an intermediate objective of the act.

The absence of a person's desire for the consequences foreseen by him or her to occur may be associated either with an indifferent attitude toward them or may even be expressed in an explicit unwillingness for them to occur.

Conscious allowance of the possibility of socially dangerous consequences exists as long as the subject does not rely on certain circumstances (whether his or her own actions, the actions of another person, or natural forces) which, in the subject's opinion, should prevent the occurrence of the socially dangerous consequences foreseen.

Conscious allowance of socially dangerous consequences also exists when a person, not wishing them to occur, relies merely on “luck,” on some chance circumstance through which the consequence foreseen by him or her may not occur. To hope for “luck” means to hope for nothing; therefore, it should be recognized that in such cases the person consciously allows the socially dangerous result to occur.

Conscious allowance is compatible only with foresight of a real, rather than abstract, possibility of socially dangerous consequences occurring. When characterizing indirect intent, the words “did not desire” should not be understood as a negative attitude toward harmful consequences, or as an active unwillingness for them to occur, that is, as an effort to prevent their occurrence. On the contrary, this attitude is approving in nature, although the offender has no interest in causing harmful consequences; nevertheless, he or she consciously allows them to occur.

The volitional content of indirect intent, alongside conscious allowance of socially dangerous consequences, may also be manifested in an indifferent attitude toward their occurrence.

An indifferent attitude toward the occurrence of socially dangerous consequences means the manifestation of complete indifference to the occurrence of those consequences, as well as the offender's particular selfishness and callousness. Thus, G., while intoxicated, encountered K. at night in a dark alley and, wishing to stop her, fired a shot in her direction out of hooligan motives. K. was wounded in the abdomen. The court found that, when firing at K., G. did not desire to cause her death or inflict grievous bodily harm, although he consciously allowed these consequences to occur. G.'s actions were committed with indirect intent.

I would like to express my opinion regarding the term “indifferent attitude.” It seems to me that an indifferent attitude, as a manifestation of will in indirect intent, is essentially no different from conscious allowance and means the absence of active emotional experiences in connection with socially dangerous consequences, the real possibility of which is reflected in the offender's anticipatory consciousness. In this case, the subject causes harm without giving thought to the harmful consequences of the act being committed, even though the possibility of causing such consequences appears to him or her to be quite real. In this regard, given the uncertainty surrounding the meaning of the term “indifferent attitude,” would it not be better to abandon it?

The following opinion has been expressed in the science of criminal law: “The legislator is not entirely precise when stating that, in the case of indirect intent, the offender ‘does not desire but consciously allows’ the occurrence of socially dangerous consequences of his or her actions. If a person consciously allows these consequences to occur and seeks to achieve other consequences (incidental consequences) that are desirable to him or her, it would be advisable to express the volitional element of indirect intent in criminal law using the formula: ‘consciously allowed these consequences to occur or was indifferent to them.’ If ‘allowance’ means permission (consent) for socially dangerous consequences, that is, a weakly expressed desire for them to occur, then ‘indifference is an uninvolved attitude toward their occurrence.’ In both cases, there is an absence of desire (reliance) to prevent socially dangerous consequences, unlike crimes committed through negligence (overconfidence).”

The precise distinction between direct and indirect intent is of great importance for the proper legal classification of a criminal offense. Most intentional criminal offenses can be committed only with direct intent, for example, theft (Article 188 of the Criminal Code), robbery (Article 191 of the Criminal Code), and armed robbery (Article 192 of the Criminal Code). The absence of direct intent to commit such acts in the subject's conduct means that the elements of the crime are also absent. Determining the type of intent is particularly important when deciding on liability for preparation for a crime and attempted crime, since these are possible only with direct intent.

The intellectual element of both types of intent is common in a number of respects. Thus, both direct and indirect intent require the offender to be aware of the social danger of his or her actions (inaction). Awareness of the social danger of an action or inaction exists when a person, while committing the act, understands its harmfulness to certain interests.

Awareness of the social danger of an act also includes awareness of its unlawfulness, that is, the person must know that he or she is acting unlawfully and illegally.

The second intellectual characteristic of intent is the person's foresight of the occurrence of socially dangerous consequences. In this respect, direct intent already has certain differences from indirect intent. Whereas, in the case of direct intent, the subject foresees both the inevitability and the possibility of consequences occurring, in the case of indirect intent, the offender foresees only the possibility of their occurrence.

The volitional element of intent is characterized by the desire for socially dangerous consequences to occur, or by conscious allowance of their occurrence, or by an indifferent attitude toward them. The principal difference between direct and indirect intent lies precisely in their volitional element.

With direct intent, a person desires socially dangerous consequences to occur. The following circumstances may indicate the presence of such a desire on the part of the subject: 1) the consequence that has occurred is the ultimate objective of his or her actions (for example, murder out of revenge); 2) the consequence that has occurred is an intermediate objective in achieving another, more important objective for the subject, whether criminal or non-criminal in nature (for example, murder for the purpose of obtaining an inheritance, etc.).

With indirect intent, a person does not desire the occurrence of a socially dangerous consequence. Such a consequence is neither the ultimate nor an intermediate objective of his or her actions. However, a person acting with indirect intent, while foreseeing the possibility of socially dangerous consequences, consciously allows them to occur or is indifferent to them. It may be concluded that the subject consciously allows such consequences to occur or is indifferent to them if he or she takes no measures to prevent them. It is also possible that the subject may even hope to prevent the consequences, but such hope is not associated with any specific circumstances. With indirect intent, a person may hope that the consequences will be prevented by chance, with a low degree of probability. For example, by leaving a newborn child out in the frost, the mother allows for the possibility that someone may find the child, but this does not mean that she acts without intent to kill, since such hope based on “luck” is characteristic precisely of indirect intent.

In the theory of criminal law, in addition to the division of intent established by law into direct and indirect intent, it is customary to distinguish between premeditated intent and intent arising suddenly, depending on the time of formation (emergence) of intent, and between specific and non-specific intent, depending on the degree of certainty. These types of intent are also referred to as definite intent and indefinite intent.

Premeditated intent is characterized by the fact that the intention to commit a criminal offense is carried out after a more or less significant period of time has elapsed since its emergence. During this period, the offender devises a plan and methods for committing the criminal offense, as well as measures for concealing it. Consequently, in this case, awareness of the social danger of the act and foresight of its consequences are, as a general rule, clearer, and the person who committed the act is more dangerous. Therefore, it is generally accepted that premeditated intent is more dangerous than intent arising suddenly. At the same time, in my opinion, it is necessary to determine the reasons why the person did not immediately carry out his or her plan. If this is explained by indecisiveness, hesitation, etc., then how justified is it to consider premeditated intent more dangerous than intent arising suddenly? It seems that in such cases there is no basis for speaking of greater danger associated with premeditated intent. It is a different matter if the time interval between the emergence and implementation of the criminal plan is обусловлен by the performance of preparatory actions for those crimes that require a series of preparatory measures, or by the sophistication of the methods used to achieve the criminal objective; in such cases, premeditated intent significantly increases the danger of the crime and the offender's personality.

There may be cases in which, with premeditated intent, the subject reacts instantly to a situation favorable for committing a crime and just as quickly, without hesitation, carries out his or her criminal intent. In this case, it should also be said that the subject has a firmly established antisocial orientation.

In certain cases, the legislator itself recognizes the premeditated nature of a crime as a factor that substantially increases the danger of the act. Thus, the commission of a criminal offense using a uniform or any document as an elaborate method indicating premeditation is regarded as an aggravating circumstance affecting criminal liability and punishment (subparagraph 15) of Part 1 of Article 54 of the Criminal Code). Arbitrary appropriation of the title of a representative of authority or an official holding a responsible public position, coupled with the commission of a crime on that basis, is classified under Part 2 of Article 390 of the Criminal Code as an aggravated offense.

Intent arising suddenly is a type of intent that is implemented in a criminal offense immediately or after a short period of time following the emergence of the criminal intention. The process of formation of intent here is short-lived. This type of intent may be simple or affective. In the case of simple, suddenly arising intent, the desire to commit a criminal offense arises in a person who is in a normal psycho-emotional state. Such a type of intent is often influenced by a provocative situation or the presence of a reason for committing a criminal offense (mercenary criminal offenses, etc.).

Affective intent, unlike simple, suddenly arising intent, is characterized by the psychological mechanism through which the intention to commit a criminal offense arises. The reason for its emergence is the unlawful actions of the victim against the offender or his or her close relatives. This type of intent is provided for by law only in two cases: in relation to Article 101 of the Criminal Code, “Murder Committed in a State of Passion,” and Article 111 of the Criminal Code, “Infliction of Grievous Bodily Harm in a State of Passion.” Affect is a state of sudden emotional disturbance caused by violence, abuse or grave insult, or other unlawful or immoral actions (inaction) of the victim, as well as by a prolonged traumatic situation arising in connection with the victim's systematic unlawful or immoral behavior. Therefore, in a criminal offense committed with affective intent, the antisocial disposition of the individual is manifested to a lesser extent, which constitutes a mitigating circumstance and makes it possible to classify the act under the Articles of the Criminal Code providing for so-called privileged offenses (Articles 101 and 111 of the Criminal Code).

In terms of their psychological content, both premeditated intent and intent arising suddenly may be either direct or indirect.

Definite (specific) intent is characterized by a desire to achieve a particular result clearly represented by the person. Depending on the degree of certainty of the person's perception of the possible consequences of his or her act, definite intent may be simple or alternative. With simple definite intent, the person clearly understands the nature and extent of the harm caused by his or her act, foresees exactly which consequence will occur, and desires that particular consequence. For example, an offender who decides to take the victim's life inflicts a fatal gunshot wound on the victim with a firearm. With alternative definite intent, the subject foresees several specifically defined consequences and desires them. However, the person does not precisely foresee or determine which result will occur as a consequence of the actions committed. Thus, when inflicting knife wounds, a person may foresee that the victim will either die or suffer grievous bodily harm, and both consequences may be equally desirable to the offender. With definite intent, a person understands the nature of the harm caused and foresees the occurrence of several socially dangerous consequences, but these consequences are not specified in his or her consciousness. The subject does not clearly enough envisage exactly which consequence he or she is striving to bring about. For example, when inflicting numerous indiscriminate blows to a person's head and torso, the offender understands that the victim may suffer either death or harm to health of varying degrees of severity, without specifying exactly what kind of harm; any of these consequences is acceptable to the offender.

With simple definite intent, if the desired consequence does not occur due to circumstances beyond the offender's control, the act committed is classified as an attempt to cause precisely that consequence. For example, if the offender's intent was directed toward depriving the victim of life, but harm of varying degrees of severity was caused to the victim's health, the act should be classified as attempted murder rather than as causing harm to health.

With alternative definite intent, if the result is covered by the offender's foresight and desire, the act committed is classified depending on the consequence that actually occurred. For example, if the subject desired either to cause the victim's death or to inflict grievous bodily harm upon the victim and grievous bodily harm was caused, the subject shall be held liable for causing grievous bodily harm. If none of the consequences covered by the alternative intent occurs, the person shall be held liable for an attempt to cause the least serious of those consequences. In the example above, if the offender's actions result in the victim suffering harm of moderate severity rather than grievous bodily harm or death, the offender shall be liable for attempted infliction of grievous bodily harm.

With definite intent, the act committed is classified depending on the consequences that have occurred. This means that a person who strikes the victim's torso with a hammer and desires any of the possible consequences shall be held liable for murder if death occurs, or for causing harm to health (of moderate severity or grievous harm) if such a consequence occurs.

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 National Academy of Natural Sciences of Kazakhstan, 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 Worker of the Ministry of Internal Affairs of the Republic of Kazakhstan.

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