Commentary on Article 25. Completed Criminal Offense of the Criminal Code of the Republic of Kazakhstan

A criminal offense shall be deemed completed if the act committed by a person contains all the elements of the offense provided for in the Special Part of this Code.

When determining whether the elements of a completed criminal offense are present in a particular socially dangerous act, one must primarily proceed from the definition of the relevant criminal offense in the Special Part of the Criminal Code of the Republic of Kazakhstan. The classification of criminal offense compositions into material, formal, and truncated compositions is of decisive importance in determining the moment at which a criminal offense is completed.

Material compositions are those in which, for an offense to be recognized as completed, the law includes in the objective elements of the offense: an act (action or omission), the occurrence of harmful consequences, and a causal relationship between the person's action (omission) and the socially dangerous consequences that have occurred.

The recognition of criminal offenses with material elements as completed is linked to the moment when the harmful consequences specified by law occur. Thus, murder (Article 99 of the Criminal Code) is deemed completed from the moment biological death occurs. Theft (Article 188 of the Criminal Code), fraud (Article 190 of the Criminal Code), and robbery (Article 191 of the Criminal Code) are deemed completed when the property has been taken and the perpetrator has obtained a real opportunity to use or dispose of it at their own discretion.

It should be borne in mind that certain criminal offenses with material elements do not entail criminal liability at all in the absence of the socially dangerous consequences specified in the disposition of the article of the Special Part of the Criminal Code. These include violations of traffic rules and the rules governing the operation of vehicles by persons driving vehicles. A violation of these rules in itself entails administrative liability, and only the occurrence of consequences in the form of moderate bodily injury to a person provides grounds for criminal liability.

In criminal offenses with so-called formal elements (Article 120, “Rape”; Article 192, “Robbery,” of the Criminal Code, etc.), the act is considered completed from the moment the socially dangerous actions specified by law are committed, regardless of what harmful consequences may subsequently result from the perpetrator's conduct. Thus, robbery (Article 192 of the Criminal Code) is a completed criminal offense from the moment of an attack for the purpose of taking possession of another person's property, accompanied by violence dangerous to the life or health of the victim, or by a threat of the immediate use of such violence, regardless of whether the perpetrator actually obtained possession of the property.

The criminal legislation of the Republic of Kazakhstan contains offense compositions in which the moment of completion is shifted to earlier stages in the development of criminally punishable activity — an attempt to commit a criminal offense or even preparation for a criminal offense. In the theory of criminal law, such offense compositions are known as truncated compositions. Such compositions include, for example, espionage (Article 176 of the Criminal Code) and banditry (Article 268 of the Criminal Code). Thus, the offense of banditry (Article 268 of the Criminal Code) is defined by law as the creation of a stable armed group (gang) for the purpose of attacking citizens or organizations, as well as the leadership of such a group (gang). In accordance with this definition, banditry is deemed a completed criminal offense from the moment a stable armed group (gang) is created, that is, from the moment of preparation for the commission of a criminal offense, even though the person who committed the offense may not have caused any actual harm to legally protected social relations.

In addition to these compositions, so-called danger compositions are also distinguished. The specific feature of these offense compositions is that the moment of completion of the criminal offense is linked neither to the occurrence of socially dangerous consequences nor to the initial acts of the encroachment, but to the moment when a real danger of socially dangerous consequences arises. Thus, exposing another person to the danger of contracting the human immunodeficiency virus (HIV) constitutes a completed criminal offense from the moment that person is placed at risk of infection. At the same time, it should be noted that truncated compositions and danger compositions are varieties of formal compositions in which the moment of completion of the criminal offense does not depend on the occurrence of socially dangerous consequences.

When establishing the elements of a completed criminal offense, the law usually specifies only the necessary minimum of socially dangerous actions and harmful consequences, or only the minimum of socially dangerous actions, the commission of which provides grounds for bringing the perpetrator to criminal liability for the relevant criminal offense. However, there are frequent cases in which, having committed such actions, the perpetrator continues their criminally punishable activity, seeking to achieve certain objectives that are not mentioned in the elements of the relevant criminal offense. For example, after taking possession of another person's property and thereby completing the elements of theft, the perpetrator subsequently sells the stolen property. Such activity usually does not affect the legal classification of the act, but may be taken into account when imposing a sentence.

In the course of continuing a criminal offense, actions may also be committed that substantially change the legal assessment of the conduct by constituting the elements of another, more serious criminal offense. Thus, for example, the commission of indecent acts against a person under the age of 14 (Article 124 of the Criminal Code) may develop into the rape of a person under the age of 14 (Part 4 of Article 120 of the Criminal Code). In this case, the conduct is classified under the article providing for the more serious criminal offense.

In law enforcement practice, difficulties arise in determining the moment of completion of continuing and repeated criminal offenses.

In the science of criminal law, continuing criminal offenses are understood as offenses that begin with some action or omission and are subsequently carried out continuously in the form of an omission over a certain period of time. A criminal offense becomes continuing because it is characterized by the uninterrupted performance of conduct covered by the elements of a specific offense. Such conduct may take the form of unauthorized abandonment of a place of service (Article 441 of the Criminal Code) or desertion (Article 442 of the Criminal Code). These offenses become continuing not as a result of the initial act of socially dangerous conduct (action or omission), but as a result of subsequent inaction associated with the failure to perform legally prescribed duties over a more or less significant period of time. Continuing criminal offenses should be considered completed as a result of an action by the perpetrator aimed at terminating the offense, or the occurrence of events that prevent its commission, such as the intervention of public authorities. It should be noted that the moment of completion depends on the specific nature of the type of criminal offense and is not the same for all types of continuing criminal offenses.

Repeated criminal offenses should be understood as offenses consisting of a series of identical criminal acts directed toward a common objective and constituting, in their totality, a single criminal offense. An example of a repeated criminal offense is torture, expressed in the infliction of physical or mental suffering through the systematic beating of a person or other violent acts, provided that these acts have not caused serious or moderate bodily injury (Article 110 of the Criminal Code).

The beginning of a repeated criminal offense should be considered the commission of the first act among several identical acts constituting a single repeated criminal offense. A repeated criminal offense is considered completed from the moment the final criminal act is committed. Repeated criminal offenses are characterized by a common objective and a single intent. They are completed from the moment of detention or voluntary surrender.

There are certain specific features concerning completed criminal offenses committed with complicity. The actions of the perpetrator are considered completed from the moment the objective elements of the criminal offense have been fulfilled. As for the question of the moment from which the acts of the other accomplices (the organizer, instigator, and accessory) are considered completed, two possible answers exist: 1) from the stage at which the accomplice completes their own actions, regardless of the conduct of the perpetrator (completion of organizational activity, activity involving the direction of the criminal offense, or instigation); 2) from the moment the criminal offense is completed by the perpetrator.

The debate over which option is more appropriate is resolved in favor of a strict dependence of the conduct of the accomplices on the perpetrator's actions. This is correct, since all accomplices pursue a common objective and seek to achieve a common result; however, in practice, the moment at which the criminal offense is deemed completed under the law does not coincide with the objective pursued by the offenders. For example, in robbery, the subject's objective is not the attack itself, but the acquisition of another person's property. Here, attention must also be drawn to the provision of Part 4 of Article 29 of the Criminal Code, which states that if the perpetrator fails to complete the criminal offense due to circumstances beyond their control, the other accomplices shall be held liable for complicity in the preparation for a criminal offense or in an attempted criminal offense. A person who, due to circumstances beyond their control, fails to induce other persons to commit such an act shall also bear criminal liability for preparation for a criminal offense.

Finally, the commission of a criminal offense is not necessarily associated with the presence of all stages of its commission. They may occur in full; there may be preparation and attempt, preparation only, attempt only, or a completed criminal offense alone. However, each subsequent stage absorbs the preceding one, which is reflected in the legal classification of the criminal offense. When legally assessing an act, only the stage at which the criminal offense was completed is indicated. An indication of the existence of any stage of an uncompleted criminal offense is made by including a reference to Part 1 or Part 3 of Article 24 of the Criminal Code in its legal classification. If only preparation for a criminal offense took place, its classification is made with reference to Part 1 of Article 24 of the Criminal Code. If both preparation and an attempt took place, or if only an attempt took place, the legal classification of the act shall refer to Part 3 of Article 24 of the Criminal Code. In the case of a completed criminal offense, regardless of which stages of an uncompleted criminal offense may have occurred, the act is classified solely as a completed criminal offense, without reference to Article 24 of the Criminal Code.

Commentary on 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 reforming 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.

Constitution Law Code Regulatory Decree Order Decision Resolution Lawyer Almaty Lawyer Legal Services Legal Consultation Civil Criminal Administrative Cases and Disputes Defense Arbitration Legal Company of Kazakhstan Law Office Court Cases Declaration Decree Order Resolution Decision Report Conclusion Application Conclusion Convention Contract Memorandum Methodology Norms Note Rules Program Charter Charter Article Commentary Resolution Regulations Protocol Draft Program Rules Addresses