Commentary on Article 22. Liability for Criminal Offences Committed with Two Forms of Guilt of the Criminal Code of the Republic of Kazakhstan
If, as a result of the commission of an intentional criminal offence, grave consequences occur which, under the law, entail a more severe punishment and which were not covered by the person's intent, criminal liability for such consequences arises only where the person foresaw the possibility of their occurrence but, without sufficient grounds, recklessly relied on their prevention, or where the person did not foresee, but should and could have foreseen, the possibility of such consequences occurring. In general, such a criminal offence is recognised as having been committed intentionally.
The concept of a “crime committed with double (complex, mixed) guilt” was introduced into scientific discourse relatively long ago; however, it was given legislative recognition only in the 1997 Criminal Code of the Republic of Kazakhstan.
The criminal legislation of 2014 did not undergo any substantial changes with regard to the issue under consideration. In the 2014 Criminal Code of the Republic of Kazakhstan, liability for criminal offences committed with two forms of guilt continues to be regulated by Article 22 of the Criminal Code, according to which: “If, as a result of the commission of an intentional criminal offence, grave consequences occur which, under the law, entail a more severe punishment and which were not covered by the person's intent, criminal liability for such consequences arises only where the person foresaw the possibility of their occurrence but, without sufficient grounds, recklessly relied on their prevention, or where the person did not foresee, but should and could have foreseen, the possibility of such consequences occurring. In general, such a criminal offence is recognised as having been committed intentionally.”
In the wording of the criminal law provision regulating issues of the double form of guilt, the changes concerned only the concept of “crime”, which was replaced by the concept of “criminal offence”, introduced throughout the Criminal Code of the Republic of Kazakhstan in 2014.
The need for legislative recognition of a provision regulating liability for criminal offences committed with two forms of guilt is associated with the fact that the division of guilt into two forms — intent and negligence — that existed in criminal legislation did not sufficiently meet the needs of law enforcement practice.
In law enforcement practice, cases are increasingly encountered in which a person, while committing an intentional act, causes socially dangerous consequences towards which their mental attitude is expressed in the form of negligence. The subjective element of such acts includes features of both intent and negligence.
The distinctive legislative construction of certain elements of offences provides a real basis for the existence of criminal offences committed with double guilt. This distinctive feature lies in the fact that the legislator legally combines two independent criminal offences, one of which is intentional, while the subjective element of the other is represented by the negligent form of guilt, with both offences being capable of existing independently. When combined with each other, these elements form a qualitatively different criminal offence.
The total number of all criminal offences committed with double guilt provided for in the Criminal Code of the Republic of Kazakhstan is 65. Of these:
Chapter 1 — 13 criminal offences;
Chapter 2 — 3 criminal offences;
Chapter 3 — 5 criminal offences;
Chapter 4 — 1 criminal offence;
Chapter 5 contains no criminal offences committed with double guilt;
Chapter 6 — 5 criminal offences;
Chapter 7 — 1 criminal offence;
Chapters 8 and 9 of the Criminal Code contain no criminal offences committed with double guilt;
Chapter 10 — 8 criminal offences; Chapter 11 — 4 criminal offences;
Chapter 12 — 7 criminal offences;
Chapter 13 contains no criminal offences committed with double guilt;
Chapter 14 — 14 criminal offences;
Chapters 15, 16 and 17 contain no criminal offences committed with double guilt;
Chapter 18 — 4 criminal offences.
Examples of criminal offences committed with two forms of guilt include intentional infliction of grievous bodily harm resulting in the negligent death of the victim (Part 3 of Article 106 of the Criminal Code); infliction of grievous bodily harm in excess of the limits of necessary defence, resulting in the negligent death of the victim (Part 2 of Article 112 of the Criminal Code); coercion to remove or unlawful removal of human organs and tissues resulting in the negligent death of the victim or other grave consequences (Part 3 of Article 116 of the Criminal Code); leaving a person in danger, resulting in the negligent infliction of grievous or moderately serious harm to the health of the person left without assistance (Part 2 of Article 119 of the Criminal Code); rape resulting in the negligent death of the victim (subparagraph 2) of Part 3-2 of Article 120 of the Criminal Code), as well as other elements of criminal offences in which a person's intentional actions cause processes that, developing further beyond their control, result in more serious consequences.
Criminal offences committed with the so-called double form of guilt possess an aggregate degree of social dangerousness derived from the social dangerousness of the intentional and negligent criminal acts comprising them. The social dangerousness of criminal offences committed with two forms of guilt is higher than the social dangerousness of their constituent elements considered separately. To verify this, it is sufficient to compare, for example, the sanctions provided for in Part 3 of Article 106 of the Criminal Code, “Intentional infliction of grievous bodily harm resulting in the negligent death of the victim”, with those provided for in Part 1 of the same Article and Part 1 of Article 104 of the Criminal Code of the Republic of Kazakhstan, “Causing death by negligence”, and so forth.
Thus, in the elements of criminal offences committed with two forms of guilt, the person's mental attitude towards the principal element of the criminal offence and the derivative consequences, the occurrence of which represents the realisation of a potential possibility inherent in the act from the very moment of its commission, constitutes elements and parts of a single mental process. Each of them represents a mental attitude towards only one element of the objective side of the crime.
Criminal offences committed with two forms of guilt are characterised by an entire complex of relationships, both direct and indirect, manifested at different levels — objective and subjective — as well as between them. The causal relationship between the principal element and the derivative consequence may serve as one of the clearest indicators of these relationships at the objective level.
In this regard, within the framework of the Article under consideration, it should be noted that criminal offences committed with double guilt presuppose the existence of a strict causal dependence between the performance by the perpetrator of actions containing the elements of the principal offence and the occurrence of additional derivative consequences. Consequences may be attributed to a person as guilt only if they resulted from the principal offence. It is precisely the fact that the second criminal act, or more accurately, the grave result, constitutes nothing other than an additional (derivative) consequence of the principal element of the criminal offence that serves as the basis for combining two seemingly independent criminal offences into a single element. In other words, the first socially dangerous act, representing the “action” in a compound crime, acts as the cause of the additional result (consequence) provided for by law as an aggravating circumstance of the compound criminal offence. For example, the death of the victim in the case of intentional infliction of grievous bodily harm (Part 3 of Article 106 of the Criminal Code) is a consequence of the commission of the criminal offence provided for in Part 1 of Article 106 of the Criminal Code. In such cases, the additional consequence is causally обусловлено by the commission of the principal criminal act, rather than by the act itself directed towards achieving the principal criminal objective.
Thus, if, in the process of intentionally destroying another person's property, a person allowed or desired the death of the victim to occur, the actions of the perpetrator constitute a concurrence of crimes provided for in subparagraph 5) of Part 2 of Article 99 of the Criminal Code, “Murder committed with particular cruelty”, and the relevant part of Article 202 of the Criminal Code, “Intentional destruction or damage to property”. However, if a person, for example, sets fire to the house of a neighbour with whom they have hostile relations (intending to destroy the house and thereby wishing to cause the victim only property damage), and does not foresee the possibility of the death of any of the persons inside the house (as should be indicated by the fact that, before setting the fire, the perpetrator took all necessary measures to ensure that no one was inside the house), their actions should be classified solely under subparagraph 1) of Part 3 of Article 202 of the Criminal Code, “Intentional destruction or damage to property resulting in the negligent death of a person”. In fact, two independent elements of crimes have been committed here, liability for which is provided for, respectively, by Article 104, “Causing death by negligence”, and Part 1 of Article 202 of the Criminal Code, “Intentional destruction or damage to property”. Obviously, in the absence in the current criminal legislation of a provision similar to subparagraph 1) of Part 3 of Article 202 of the Criminal Code, “Intentional destruction or damage to property resulting in the negligent death of a person”, the act would have been classified as a concurrence of crimes. However, such a solution cannot be considered accurate, since in this case it would not reflect the mutual relationship that existed between the death of a person and the destruction of their property (house). If we slightly modify the situation under consideration and assume that the victim's house remained intact, while the victim died from poisoning caused by accumulated gas, then (since the element provided for in Part 1 of Article 202 of the Criminal Code of the Republic of Kazakhstan is material in nature) the perpetrator's conduct should receive an entirely different legal assessment, namely, it should be classified under the concurrence of Articles 104 and Part 1 of Article 202 of the Criminal Code, with reference to Article 24 of the Criminal Code. The chain of causation at the level of the criminal consequence of the principal element is interrupted here. The victim's death is no longer the consequence of the perpetrator having carried their intent through to completion by destroying the building, but merely the result of the initial actions taken to carry it out. The poisoning is the result of the subject's actions, not mediated by the destruction of the house, but independently and directly derived from those actions.
At the subjective level, intent and negligence may quite legitimately be regarded as interconnected aspects of internal conscious and subconscious activity. Thus, the actions of a person consisting of inflicting grievous bodily harm on a victim, resulting in the victim's death through negligence, will be classified under Part 3 of Article 106 of the Criminal Code only where, at the subjective level, there is a combination of intent with regard to the grievous bodily harm and negligence with regard to the derivative consequence (in the form of deprivation of life). If the perpetrator, having objectively performed similar actions, acted negligently with regard to the infliction of grievous bodily harm, then, in this case, where the relevant conditions are present, law enforcement authorities must establish an entirely negligent criminal offence provided for in Article 104 of the Criminal Code, “Causing death by negligence”.
The criminal-law assessment of these same actions may also take the form of murder (Article 99 of the Criminal Code) where the intentional form of guilt is established in relation to the death of the victim. This also applies to any other act involving a double form of guilt.
A specific feature of double guilt, in terms of the content of the provisions described above, is that the person's attitude towards the immediate consequences of the act is intentional (with direct or indirect intent), whereas their mental attitude towards the more remote consequences of the act is assessed by the legislator as negligent guilt. For the proper classification of a criminal offence committed with two forms of guilt and the correct assessment of the degree of dangerousness of such criminal offences, criminal law theory generally groups them into material and formal elements, with the issues of distinguishing between these types of criminal offences being determined by the specific nature and character of their consequences.
In material elements, the disposition of an article of the Criminal Code specifies clearly defined consequences. Their analysis demonstrates that the immediate consequences of a criminal offence are characterised by intentional guilt in both its forms — direct or indirect intent. With regard to more remote consequences, the subject's negligent attitude takes the form of criminal recklessness or criminal negligence.
Remote consequences are assessed as more serious in comparison with immediate consequences. This concerns qualified forms of criminal offences whose principal element is material in nature, while the qualifying feature is a more serious consequence than the consequence constituting a mandatory element of the principal offence. For example, under the structure of Article 106 of the Criminal Code, the immediate consequence is the infliction of grievous bodily harm on a person (Part 1 of Article 106), while the remote consequence is the death of the victim (Part 3 of Article 106). It is characteristic that the qualifying consequence generally consists in causing harm to a different object rather than to the immediate object against which the principal element of the given crime is directed. Thus, intentional infliction of grievous bodily harm (Part 1 of Article 106) has human health as its object; however, if it is accompanied by the negligent causing of the victim's death (Part 3 of Article 106), the object becomes human life. This and other crimes of a similar structure, which I have previously listed, are characterised by the intentional infliction of the mandatory consequence and a negligent attitude towards the more serious consequence, to which the legislator has assigned the role of a qualifying feature and, accordingly, established more severe liability.
Criminal offences committed with two forms of guilt in formal elements have their own specific characteristics and distinctive features. In formal elements, there is a heterogeneous mental attitude towards an act or omission that constitutes a crime irrespective of its consequences, and towards the qualifying consequence. At the same time, the qualifying consequence generally consists in causing harm to an additional object rather than to the object placed under criminal-law protection by the provision establishing the principal element of the given criminal offence. This category includes qualified forms of criminal offences whose principal element is formal in nature, while the qualified element includes certain grave consequences. Examples of such a legislative structure include Articles 325, 326 of the Criminal Code, and others. Thus, in Article 326 of the Criminal Code, “Violation of Environmental Requirements in the Handling of Microbiological or Other Biological Agents or Toxins”, the principal element of the criminal offence, described in the disposition of Part 1 thereof, is legislatively constructed as an element of endangerment and is expressed as follows: “Violation of environmental requirements during the storage, destruction or burial of microbiological or other biological agents or toxins, or their unlawful importation into the Republic of Kazakhstan for processing, storage or burial, if this act has caused or could have caused significant damage to the environment or has caused harm to human health...”. According to the content of this provision, an act committed in violation of environmental requirements may be characterised by intentional guilt in relation to the consequences that may arise as a result of the aforementioned violations, while the mental attitude towards such consequences is assessed according to the characteristics of negligence. Parts 2 and 3 of Article 326 of the Criminal Code establish qualifying features of the elements of crimes provided for in this Article. Under Part 2 of Article 326 of the Criminal Code, the legislator identifies among the qualifying features relating to the harmful consequences of violating environmental requirements such features as causing or creating a threat of causing large-scale damage to the environment, as well as committing the act specified in Part 1 of the Article in an area of environmental emergency. Part 3 of Article 326 of the Criminal Code establishes liability for committing the acts provided for in Parts 1 or 2 of Article 326, which have resulted in particularly large-scale damage to the environment, the death of a person, or mass illness among people. That is, in this case, the qualified elements of crimes committed with two forms of guilt are constructed according to the characteristics of a material element, taking into account the increased social dangerousness of the act due to the occurrence of grave consequences.
Thus, according to the structural features of the articles of the Special Part of the Criminal Code, criminal offences committed with two forms of guilt may be divided into two groups:
- criminal offences committed with a double form of guilt, the principal element of which is formulated in the disposition of the Article as a material element, while the qualifying features are more remote grave consequences;
- criminal offences whose principal element is formulated in the disposition of the Article as a formal element, while the qualified element is characterised by the mandatory occurrence of grave consequences specified in the disposition of the Article.
In this regard, judicial and investigative authorities should bear in mind that, when examining the perpetrator's guilty mental attitude, it is necessary to thoroughly investigate the entire process of motivation, right up to the setting of the criminal's objective: the consciousness that determined the direction of motivation and the goal-setting process, the feelings reflected in the criminal's objectives, their plans for achieving their objectives and, finally, the criminal's will.
In general, the criminal offences under consideration should be regarded as intentional.
Commentary of 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 the 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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