Commentary on Article 26. Voluntary Abandonment of a Criminal Offense under the Criminal Code of the Republic of Kazakhstan

Voluntary abandonment of a criminal offense shall be deemed to constitute the cessation by a person of preparatory acts or the cessation of an act (omission) directly aimed at committing such an offense, provided that the person was aware of the possibility of bringing it to completion. A person shall not be subject to criminal liability for a criminal offense if he or she voluntarily and finally abandons the completion of that offense.

A person who voluntarily abandons the completion of a criminal offense shall be subject to criminal liability only if the act actually committed by that person contains the elements of another criminal offense.

The organizer and instigator of a criminal offense shall not be subject to criminal liability if, by notifying state authorities or taking other measures, they prevent the perpetrator from bringing that offense to completion. An accomplice shall not be subject to criminal liability if, before the perpetrator completes the criminal offense, the accomplice refuses to provide the assistance promised in advance or eliminates the consequences of the assistance already rendered.

If the actions of the organizer or instigator specified in Part Three of this Article do not result in the prevention of the criminal offense, the measures taken by them may be recognized by the court as mitigating circumstances when imposing a sentence.

Voluntary abandonment is an institution of criminal law that excludes criminal liability for a person who has created conditions for the commission of a crime or has undertaken actions (omissions) directly aimed at committing a crime, where the person's initial intentions are not carried through to completion.

Part 1 of Article 26 of the Criminal Code establishes that voluntary abandonment of a criminal offense shall be deemed to constitute the cessation by a person of preparatory acts or the cessation of an act (omission) directly aimed at committing a criminal offense, provided that the person was aware of the possibility of bringing the criminal offense to completion. Thus, voluntary abandonment of a crime is possible not at any point during the commission of criminal activity, but only at its unfinished stages — preparation and attempt. The reasons for interrupting criminal activity must not be objective circumstances that make it impossible to continue the crime; rather, they must be reasons of a subjective psychological nature. A person shall not be subject to criminal liability for a criminal offense if he or she voluntarily and finally abandons the completion of that criminal offense, provided that the actions (omissions) actually committed do not contain the elements of the crime for which the person was preparing and toward the realization of whose criminal result the person had begun taking actions.

At the same time, a person who voluntarily abandons the completion of a criminal offense shall be subject to criminal liability only if the act actually committed by that person contains the elements of another criminal offense (Part 2 of Article 26 of the Criminal Code). For example, if a person acquired a firearm for the purpose of committing a robbery but subsequently abandoned the intention to commit it, that person shall be subject to criminal liability under Part 1 of Article 287 of the Criminal Code for the unlawful acquisition of a firearm.

Voluntary abandonment is the abandonment of the completion of an already commenced preliminary criminally punishable activity while being aware of the actual possibility of bringing it to completion. There is no voluntary abandonment if the offender ceases his or her criminally punishable activity after becoming convinced that it is impossible to bring it to completion. For example, a thief at the attempted theft stage abandons further commission of the criminal offense after becoming convinced that he or she is unable to break the lock. Such abandonment is not voluntary and therefore does not exclude criminal liability.

Nor can those cases be regarded as voluntary abandonment in which the offender refuses to continue criminal activity as a result of encountering difficulties in implementing the socially dangerous intention (or fear of being exposed, as a result of which the commission of the criminal offense is postponed until a later time).

Voluntary abandonment of the commission of a criminal offense is a circumstance that excludes, rather than mitigates, liability. First, voluntarily abandoning preparation or an attempt indicates the absence of public danger in such an act and in the person who committed it. Second, eliminating criminal liability in cases of voluntary abandonment may encourage a person to discontinue already commenced socially dangerous activity.

The motives that guided the person in abandoning further preliminary socially dangerous activity may be diverse (remorse, pity, pangs of conscience, etc.). What matters is that the person completely abandons further socially dangerous activity while being aware of the possibility of continuing it. Abandonment shall also be considered voluntary when a person refuses to commit a criminal offense out of fear of criminal liability.

Criminal liability for preliminary socially dangerous activity is excluded only on the condition that the abandonment of further activity is final and not merely a temporary interruption. For example, if the offender sees that the tools at his or her disposal are insufficient to break open a safe and stops the attempted break-in in order to bring different tools some time later, what has been done cannot be regarded as voluntary abandonment of a criminal offense. Voluntary abandonment cannot be recognized where the criminal offense has already been completed.

If a person abandons a repeated attempt after the first attempt failed to achieve the intended result due to circumstances beyond that person's control, there is no voluntary abandonment. For example, during an argument with his wife, a husband raises an axe with the intention of striking her on the head. The wife manages to dodge the blow. Subsequently, the husband refuses to strike her again. In this example, the offender has already committed an act aimed at achieving the criminal intention. The absence of a result from the initial attempt is not due to the person's own efforts, as is the case with voluntary abandonment, but to another cause, in this case the wife's skillful evasion of the direct blow. An attempt to commit a crime is nothing other than intentional actions directly aimed at committing a crime but not brought to completion due to circumstances beyond the person's control (Part 3 of Article 24 of the Criminal Code). Despite the fact that the person subsequently refused, on his or her own initiative, to bring the crime to completion, at the moment of the initial attempt the person desired the occurrence of the consequences.

In this situation, all actions aimed at causing the death of another person have been carried out, and their continuation is impossible; only a repetition of those actions is possible. Therefore, refusal to repeat, rather than to continue, the criminal actions cannot be regarded as voluntary abandonment of the commission of a crime.

It is irrelevant which specific crime the person has abandoned: a crime of medium gravity, a serious crime, or an especially serious crime. The mere fact of voluntarily discontinuing preliminary criminal activity is sufficient to establish voluntary abandonment of a crime.

Voluntary abandonment of the commission of a crime is a socially beneficial institution of criminal law. The absence of liability is associated not only with the beneficial nature of a person's abandonment of a crime, but also with the absence of grounds for criminal liability — the elements of a criminal offense.

Voluntary abandonment at the preparation stage is most often carried out through the person's passive conduct, that is, the person refrains from continuing the socially dangerous activity already commenced. However, abandonment of further socially dangerous activity at the preparation stage may also take place through active actions. For example, a person who has committed a criminal offense destroys the instruments intended for committing the criminal offense.

Voluntary abandonment is also possible at the stage of an attempt to commit a crime. As with preparation, voluntary abandonment at the attempt stage may be expressed through both passive and active conduct on the part of the offender; however, this depends on whether the attempt is incomplete or complete.

In the case of an incomplete attempt, voluntary abandonment is always expressed exclusively through passive conduct, that is, refraining from taking further actions (for example, having raised a knife to strike, the offender lowers his or her hand without causing any harm to another person).

It should be noted that there is no consensus among scholars in the science of criminal law regarding the possibility of voluntary abandonment of the commission of a crime in the case of a complete attempt. There are both proponents who recognize the possibility of voluntary abandonment in the case of a complete attempt and opponents of this position. In my opinion, voluntary abandonment is also possible in the case of a complete attempt, but subject to certain conditions: an active form of voluntary abandonment; the existence of a possibility to prevent further development of the objective elements of the offense; and, depending on the type of offense in terms of its objective elements, the prevention of socially dangerous consequences. For clarity, I will provide two examples involving an attempt on human life. First example: intending to kill a person, the offender inflicts knife wounds on that person and then, abandoning the continuation of the crime, bandages the wounds and calls an ambulance. Second example: with the intention of depriving a person of life, the offender administers poison to the victim and then gives the victim an antidote and calls a doctor. In the first case, the offender's actions do not constitute voluntary abandonment and may be regarded as active repentance. In the second case, where the prevention of the consequences directly depends on the offender's actions and those actions produce a positive result, it may be appropriate to speak of voluntary abandonment, since the crime is not brought to completion as a result of the offender's own actions. In this case, the person is liable only for the harm actually caused (for example, intentional infliction of bodily harm of medium severity under Part 1 of Article 107 of the Criminal Code).

Voluntary abandonment must be distinguished from active repentance.

First, active repentance, as a ground for exemption from criminal liability, constitutes positive post-criminal conduct by a person aimed at preventing, eliminating or reducing the harmful consequences of the act committed, or at providing assistance to law enforcement agencies in the detection and investigation of a criminal offense, as well as at making amends for the harm caused by the criminal offense.

Second, in the case of voluntary abandonment, a person is not required to compensate for the material or other non-material consequences of his or her activity. The mere fact of voluntarily abandoning the completion of a crime is sufficient grounds for the person not to be subjected to criminal liability.

Third, in the case of active repentance, the decision on exemption from criminal liability is a matter of discretion for law enforcement authorities, whereas, once the elements of voluntary abandonment have been established, the criminal case is subject to termination.

Fourth, voluntary abandonment exists only where the person's act does not contain the elements of a criminal offense. In the case of active repentance, the crime has already been committed. Through post-criminal actions, the person demonstrates a reduction in the public danger posed by both the person and the act committed.

Some scholars place voluntary abandonment of a criminal offense on the same footing as the insignificance of an act. However, the legal nature of voluntary abandonment and insignificant acts is different:

An act committed in circumstances of insignificance formally falls within the elements of a criminal offense. Voluntary abandonment does not contain the elements of a criminal offense;

A person is not held liable for an insignificant act due to the absence of public danger in that act. Any harm caused, if there is any, is insignificant in scope. It is precisely because of the insignificance of the person's actions that the person ceases to be socially dangerous, and the application of criminal law measures becomes inappropriate;

When committing insignificant acts, a person is aware of the unlawfulness of the act and commits it. In the case of voluntary abandonment, a person voluntarily refrains from completing the creation of conditions for the commission of a crime or actions (omissions) directly aimed at committing a crime, while being aware of the possibility of achieving the criminal result.

Active repentance does not eliminate criminal liability but is taken into account by the court as a mitigating circumstance (Clause 11) of Part 1 of Article 53 of the Criminal Code).

Voluntary abandonment in cases of complicity has its own specific features. In accordance with Part 3 of Article 26 of the Criminal Code, the organizer of a criminal offense and the instigator of a criminal offense shall not be subject to criminal liability if, by notifying state authorities or taking other measures, they prevent the perpetrator from bringing the criminal offense to completion. An accomplice shall not be subject to criminal liability if, before the perpetrator completes the criminal offense, the accomplice refuses to provide the assistance promised in advance or eliminates the consequences of the assistance already rendered.

Unlike the voluntary abandonment of the perpetrator, which may be expressed in refraining from performing certain actions, the voluntary abandonment of the organizer requires active actions only. In order for voluntary abandonment to be recognized in the actions of an organizer during the creation of conditions for the commission of a crime, the organizer must undertake activities that result in eliminating the intention of the persons organized by him or her to commit the crime. The organizer must influence the resolve of the perpetrator, inducing the latter to abandon the commission of the crime, or by his or her actions prevent the perpetrator from bringing the crime to completion. If the perpetrator does not respond to the measures taken by the organizer to prevent the commission of the crime and intends to undertake actions directly aimed at bringing the crime to completion, the organizer may voluntarily abandon the crime by notifying law enforcement authorities of the planned crime. It should be noted that the ways in which an organizer may voluntarily abandon a crime depend on the specific nature of the functions performed by the organizer in the complicity.

An instigator is a person who induces another person to commit a criminal offense through persuasion, bribery, threats or other means (Part 4 of Article 28 of the Criminal Code). Instigation is carried out through active actions aimed at generating in another person the intention and resolve to commit a crime. Therefore, passive conduct is insufficient for voluntary abandonment by an instigator. The instigator is obliged to take measures to prevent the perpetrator's criminal activity. In order to recognize voluntary abandonment in the actions of an instigator, as well as an organizer, it is necessary to eliminate the entire unfinished attempt on the part of the persons who were instigated or organized by them. The legislator adheres to this position. Thus, Part 3 of Article 26 of the Criminal Code states: «The organizer and instigator of a criminal offense shall not be subject to criminal liability if, by notifying state authorities or taking other measures, they prevent the perpetrator from bringing that offense to completion...». Thus, the legislator emphasizes that voluntary abandonment by the aforementioned persons exists where the criminal offense is not brought to completion by the perpetrator as a result of the influence of the instigator and organizer. An instigator may voluntarily abandon a criminal offense by persuading the perpetrator not to commit the criminal offense, personally preventing the commission of the crime, notifying law enforcement authorities of the planned criminal activity, notifying the person against whom the criminal offense is to be committed, and so forth.

An accomplice is a person who assists in the preparation or commission of a criminal offense without personally participating in the actions covered by the objective elements of the criminal offense. In the theory of criminal law, two types of aiding and abetting are distinguished: intellectual and physical, depending on which the manifestation of voluntary abandonment of the commission of a criminal offense by an accomplice in cases of complicity will differ.

In the case of physical assistance, voluntary abandonment is expressed through active actions. If the accomplice has provided the means for committing a criminal offense, he or she must take them away from the perpetrator; if the accomplice has removed obstacles preventing the perpetrator from committing the criminal offense, the accomplice is obliged to restore them.

Intellectual assistance is expressed in providing assistance in the commission of a criminal offense by giving advice and instructions on how to commit the criminal offense and providing the perpetrator with information necessary for committing the criminal offense. If the accomplice has collected information but has not provided it to the perpetrator of the criminal offense, this constitutes voluntary abandonment by the accomplice. The accomplice must persuade the perpetrator to abandon the criminal intentions or physically prevent the perpetrator from committing the criminal offense.

Part 3 of Article 26 of the Criminal Code states: «An accomplice shall not be subject to criminal liability if, before the perpetrator completes the criminal offense, the accomplice refuses to provide the assistance promised in advance or eliminates the consequences of the assistance already rendered».

In accordance with Part 4 of Article 26 of the Criminal Code: «If the actions of the organizer or instigator specified in Part Three of this Article do not result in the prevention of the criminal offense, the measures taken by them may be recognized by the court as mitigating circumstances when imposing a sentence».

The voluntary abandonment by the perpetrator of bringing the crime to completion affects the limits of liability of the other accomplices. Thus, where the perpetrator voluntarily abandons the crime, the perpetrator shall not bear criminal liability, whereas the other accomplices shall be liable for preparation or attempted commission of the crime abandoned by the perpetrator, depending on the stage at which the perpetrator interrupted the crime.

In this case, the will of the perpetrator constitutes an external circumstance for the other accomplices, independent of their will.

In conclusion of the examination of the institution of voluntary abandonment, it should be noted that its characteristics include:

cessation of preparatory actions (omissions) or actions (omissions) directly aimed at committing a criminal offense. In order to recognize the existence of voluntary abandonment, the mere fact that the person does not perform the actions he or she intended to perform is sufficient, that is, passive conduct while having the possibility to act in one way or another;

voluntary cessation of preparation for a criminal offense or an attempt to commit a criminal offense. This means that a person who has undertaken preparation or begun performing actions (omissions) directly aimed at carrying out a criminal act subsequently abandons the completion of the crime of his or her own free will, and not because it has become impossible to carry out the intended act;

awareness of the possibility of bringing the commenced crime to completion. If the offender abandons the completion of the criminal act due to insurmountable external obstacles, in connection with the impossibility of completing the criminal offense, or if the offender is detained in the process of committing the crime, the abandonment is not voluntary but forced. Such abandonment does not exclude criminal liability for preparation for a crime or attempted commission of a crime;

final abandonment of the criminal offense, rather than an interruption in its commission until more favorable conditions arise that would make it possible to achieve the criminal result. Only where the criminal intention is abandoned unconditionally and finally does the public danger of the person who prepared for or attempted to commit the crime cease to exist.

Taken together, the characteristics of voluntary abandonment characterize it as a circumstance excluding criminal liability for an unfinished criminal offense.

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 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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