Commentary on Article 29. Liability of Accomplices to a Criminal Offense of the Criminal Code of the Republic of Kazakhstan

1. The criminal liability of accomplices shall be determined by the nature and degree of each person's participation in the commission of the criminal offense.

2. Co-perpetrators shall be liable under the same article of this Code for the criminal offense jointly committed by them, without reference to Article 28 of this Code.

3. The liability of an organizer, instigator, or accessory shall arise under the article providing for punishment for the act committed, with reference to Article 28 of this Code, except in cases where they simultaneously acted as co-perpetrators.

4. If the perpetrator fails to complete the crime due to circumstances beyond his or her control, the other accomplices shall be liable for complicity in the preparation for the crime or attempted crime. A person who, due to circumstances beyond his or her control, fails to induce other persons to commit such an act shall also bear criminal liability for preparation for the crime.

5. A person who is not a subject of the criminal offense specifically designated in the relevant article of the Special Part of this Code, but who participated in the commission of the act provided for by that article, shall bear criminal liability for the given criminal offense as its organizer, instigator, or accessory.

In accordance with Article 4 of the Criminal Code, the sole basis for criminal liability is the commission of a criminal offense, that is, an act containing all the elements of the corpus delicti of a criminal offense provided for by the Criminal Code. The institution of complicity does not create a new basis for criminal liability and does not alter its substance. However, in cases of complicity, the determination of the grounds for the criminal liability of accomplices becomes more complicated because neither the organizer, nor the instigator, nor the accessory directly commits the socially dangerous act containing all the elements of the corpus delicti of a criminal offense. The particular feature of complicity lies solely in the fact that the elements of the corpus delicti and its boundaries are defined both by the elements of the specific corpus delicti established in the article of the Special Part of the Criminal Code and by the elements formulated in the articles regulating matters of complicity. Therefore, in order to substantiate the liability of accomplices by reference to the elements contained in the relevant articles of the Special Part, it is necessary to establish the conditions of liability formulated in Article 29 of the Criminal Code.

The law does not provide for mandatory aggravation or mitigation of punishment depending on the type of accomplice. When imposing punishment for a criminal offense committed with complicity, and when deciding on exemption from liability or punishment, consideration shall be given to the nature and degree of the person's actual participation in its commission, the significance of such participation in achieving the objective of the criminal offense, and its influence on the nature and extent of the harm caused. Mitigating and aggravating circumstances relating to the personality of one of the accomplices shall be taken into account when imposing punishment only on that particular accomplice.

In the science of criminal law, there is a dispute concerning the legal nature of complicity. There are two main positions on this matter: one of them proceeds from the recognition of the accessory nature of complicity.

The main provisions of the accessory theory are as follows: 1) an accomplice may be held liable for his or her actions only if the perpetrator has committed a punishable act; 2) an accomplice is brought to criminal liability under the article of the Special Part of the Criminal Code that is applied to the perpetrator. The accessory nature of complicity means that if the perpetrator has committed a completed criminal offense, the accomplices must also be held liable for a completed criminal offense. If the perpetrator has committed only an attempt to commit a criminal offense, the accomplices shall likewise be liable for attempted commission of a criminal offense.

The other position is based on the assertion that the liability of accomplices is independent of the actions of the perpetrator. According to its proponents, accomplices are liable not for the perpetrator's act, but for their own acts.

An examination of the law and the practice of its application reveals arguments both in favor of and against the accessory theory of complicity. One thing is certain: the basis for the liability of each accomplice lies not in the actions of the perpetrator, but in the nature of the actions personally committed by each of them to achieve the common criminal result.

At the same time, the reality is that there can be no complicity without a perpetrator. Special conditions and forms of liability of accomplices are possible only if the perpetrator has carried out the elements of the crime as intended or has begun their implementation. The strongest argument in favor of the accessory theory of complicity is that the actions of all accomplices are classified in the same manner; however, there are several exceptions to this rule:

accomplices shall not be liable for an act not covered by their intent;

when classifying the actions of organizers, instigators, and accessories, reference is made to Article 28 of the Criminal Code;

circumstances relating to the personality of another accomplice are not taken into account when classifying the act of an accomplice.

In accordance with Part 1 of Article 29 of the Criminal Code, the criminal liability of accomplices shall be determined by the nature and degree of each person's participation in the commission of the criminal offense. The perpetrator is brought to criminal liability solely under the article of the Special Part of the Criminal Code. Since the objective element of the criminal offense is carried out by the perpetrator, it is evident that the Criminal Code of the Republic of Kazakhstan directly makes the liability of accomplices dependent on the act committed by the perpetrator, but only within the limits of their common intent.

Part 2 of Article 29 of the Criminal Code establishes that co-perpetrators shall be liable under the same article of the Criminal Code for the criminal offense jointly committed by them, without reference to Article 28 of the Criminal Code.

The provisions of Part 3 of Article 29 of the Criminal Code are also based on the accessory nature of complicity, since they provide that the liability of an organizer, instigator, or accessory arises under the article defining the punishment for the criminal offense committed, with reference to Article 28 of the Criminal Code, except in cases where they simultaneously acted as co-perpetrators of the criminal offense.

The grounds and limits of the criminal liability of accomplices are considered not only in cases where the perpetrator's unlawful activity has been completed (that is, when the criminal offense conceived by the accomplices has been carried out by the perpetrator), but also in cases where the perpetrator fails to complete the criminal offense due to circumstances beyond his or her control. Part 4 of Article 29 of the Criminal Code provides that if the perpetrator fails to complete the crime due to circumstances beyond his or her control, the other accomplices to the crime shall be liable for complicity in the preparation for or attempt to commit the crime; that is, the liability of accomplices in the presence of such circumstances depends on the stage at which the perpetrator's criminal activity was terminated. A person who, due to circumstances beyond his or her control, fails to induce other persons to commit the relevant crime shall also bear criminal liability for preparation for the crime. In this regard, it should be borne in mind that, pursuant to Part 2 of Article 24 of the Criminal Code, criminal liability arises for preparation for a grave or especially grave crime, as well as for preparation for a terrorist crime. Furthermore, pursuant to Part 4 of Article 24 of the Criminal Code, criminal liability arises for an attempt to commit a crime of medium gravity, a grave crime, or an especially grave crime, as well as for an attempt to commit a terrorist crime.

The limits of liability of accomplices to a criminal offense are predetermined by how correctly the acts committed by each accomplice have been classified. A general condition for the correct classification of acts committed by accomplices to a criminal offense is the precise determination of the form of complicity (by a group of persons without prior conspiracy, by a group of persons with prior conspiracy, or by a criminal group). If a criminal offense is committed by a group of persons with prior conspiracy and this circumstance is provided for in the article of the Special Part of the Criminal Code as an aggravating element, this aggravated corpus delicti shall be imputed to all accomplices. In this case, the actions of the organizer, instigator, and accessory require a reference to Article 28 of the Criminal Code. If a criminal offense is committed by an organized group, the actions of the organizer shall be classified under the aggregate of criminal offenses (under the article of the Special Part of the Criminal Code of the Republic of Kazakhstan providing for liability for the act committed by an organized group, and under Part 1 of Article 262 of the Criminal Code for the creation and leadership of an organized group, criminal organization, or its structural divisions). In this case, no reference to Article 28 of the Criminal Code is required for the classification of the organizer's actions, since his or her organizational activities have already received a legal assessment. At the same time, the actions of the perpetrator, instigator, and accessory shall also be classified under the aggregate of criminal offenses (under the article of the Special Part of the Criminal Code providing for liability for an act committed by an organized group or criminal organization, and under Part 2 of Article 262 of the Criminal Code for participation in an organized group or criminal organization).

Where the motives and purposes of the perpetrator differ from those of the other accomplices, it is mandatory that the other accomplices be aware that the perpetrator is committing the crime for the motives specified in the law or with a specific purpose. For example, the actions of a person assisting in the commission of a murder must be classified as aiding and abetting murder for mercenary motives if the fact that the perpetrator acted with mercenary motives was known to the accessory, even though the accessory himself or herself acted out of jealousy.

Qualifying circumstances characterizing the actions of an organizer, instigator, or accessory are relevant to the classification of the actions only of those persons to whom they relate and shall not be imputed to the other accomplices. Thus, if an instigator induced the perpetrator to commit a murder with particular cruelty, but the perpetrator deliberately chose a method that did not possess such characteristics, the actions of the instigator should be classified under Part 5 of Article 28 and Subparagraph 5) of Part 2 of Article 99 of the Criminal Code, while the actions of the perpetrator should be classified under Part 1 of Article 99 of the Criminal Code.

The Criminal Code of the Republic of Kazakhstan contains separate provisions establishing liability for special subjects. For example, pursuant to Article 344 of the Criminal Code, only employees of railway, air, sea, or river transport may be held liable for violating traffic safety and transport operation rules; liability for knowingly rendering an unjust judgment, decision, ruling, or resolution (Article 418 of the Criminal Code) applies only to judges, and so on. A criminal offense involving a special subject may be committed not by any sane person who has reached the age established by law for the given criminal offense, but only by a person possessing special characteristics.

The specific feature of complicity in a criminal offense involving a special subject is that, in accordance with the nature of such criminal offenses, general subjects may act as organizers, instigators, and accessories, but not as perpetrators of the criminal offense (Part 5 of Article 29 of the Criminal Code). It should be borne in mind that qualifying elements of a criminal offense relating to the perpetrator may be imputed to other accomplices (the organizer, instigator, and accessory) if they were aware of such elements and, through their actions, facilitated the commission of the criminal offense specifically by that perpetrator.

A criminal offense involving a special subject shall be recognized as having been committed with complicity if two or more persons possessing the characteristics of a special subject participated in its commission. For example, a bribe shall be deemed to have been received by a group of persons acting in prior conspiracy (Subparagraph 2) of Part 3 of Article 366 of the Criminal Code) if two or more officials participated in receiving it, having previously agreed to commit the given crime jointly. The actions of an official involving the receipt of a bribe in conspiracy with a person who is not an official cannot be regarded as the receipt of a bribe by a group of persons acting in prior conspiracy.

The act committed by the perpetrator, containing all the elements of the corpus delicti of a criminal offense and being in a direct and necessary causal relationship with the acts of the accomplices, should be recognized as the basis for the criminal liability of accomplices. The act of the perpetrator and the actions of the accomplices, in addition to being interconnected, mutually conditioned, and interdependent, must also be covered by a unified intent.

Although accomplices are liable for the common criminal offense, they are brought to criminal liability within the limits of their own individual conduct, that is, in accordance with the role they performed in the complicity.

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.

Constitution Law Code Regulatory Act 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 Programme Charter Charter Article Commentary Resolution Regulations Protocol Draft Programme Rules Addresses