Commentary on Article 36. Circumstances Permitting the Non-Prosecution of Criminal Offences under the Criminal Procedure Code of the Republic of Kazakhstan
1. Where the relevant circumstances exist, the criminal prosecution authority or the court, within the limits of its competence, shall be entitled to terminate criminal prosecution and release a person from criminal liability in the cases provided for in Part One of Article 65, Articles 66 and 67, Parts Two and Three of Article 68, Parts One and Three of Article 83, as well as in the notes to Articles 441, 442, 444—448 and 453 of the Criminal Code of the Republic of Kazakhstan. In such cases, the court shall also be entitled to render a conviction while releasing the person from criminal liability.
2. Where the public prosecutor discovers in court circumstances permitting the non-prosecution of a criminal offence, the public prosecutor shall be entitled to declare a refusal to prosecute the accused. The refusal to prosecute declared by the public prosecutor shall not prevent the private prosecutor from continuing the prosecution of the accused using the materials of the criminal case.
3. Before the termination of criminal proceedings, the suspect, accused or defendant shall be informed of the grounds for terminating the case, the legal consequences thereof and the right to object to the termination of the case on those grounds.
4. The victim and (or) their representative shall be notified of the termination of the criminal case, and they shall be entitled to appeal the ruling to the prosecutor or to the court in accordance with the procedure provided for by this Code.
5. Termination of a criminal case on the grounds specified in Part One of this Article shall not be permitted if the suspect, accused, defendant or victim objects thereto. In such a case, the proceedings shall continue in the ordinary manner.
6. Where, before the court retires to the deliberation room, the bail provided for in Article 69 of the Criminal Code of the Republic of Kazakhstan has been deposited with the court, the court shall be entitled to render a conviction releasing the person from serving the sentence subject to the establishment of a guarantee.
Where the court adopts another final decision in the case, the subject of the bail shall be immediately returned to the person who deposited it. Upon the return of the subject of the bail, the amount spent on ensuring its safekeeping shall not be recovered from the pledgor. The procedure for accepting, appraising, storing, returning and selling the subject of the bail, enforcing recovery against it and transferring it to state revenue shall be determined by the Government of the Republic of Kazakhstan.
Release of a person from serving a sentence subject to the establishment of a guarantee shall not be permitted if the accused or the victim objects thereto.
Footnote. Article 36 was amended by Law of the Republic of Kazakhstan No. 248-V dated 7 November 2014 (effective from 1 January 2015); Law No. 240-VI dated 1 April 2019 (effective upon the expiry of ten calendar days after the date of its first official publication); and Law No. 292-VI dated 27 December 2019 (see Article 2 for the procedure for its entry into force).
The legislator identifies a group of circumstances that allow the court, the prosecutor, as well as the pre-trial investigation authorities, within the limits of their competence, to terminate a criminal case while releasing a person from criminal liability on non-exonerating grounds. These circumstances are provided for in Section 5 of the Criminal Code and characterise cases of release from criminal liability and punishment: in connection with active repentance (Part 1 of Article 65); where the limits of necessary defence have been exceeded (Article 66); upon fulfilment of the conditions of a procedural agreement (Article 67); in connection with reconciliation with the victim or applicant (Parts 2—3 of Article 68); in respect of minors (Parts 1 and 3 of Article 83); as well as on the grounds reflected in the notes to certain articles of Chapter 18 of the Criminal Code, “Military Criminal Offences”.
The conditions for terminating criminal cases under these articles of the Criminal Code depend on the category of the criminal offence committed. Termination of a criminal case is unequivocally permitted in respect of all criminal misdemeanours. Termination of a criminal case is not permitted in cases involving serious and especially serious crimes, including certain types thereof and criminal activity of an organised nature. For example, Part 2 of Article 65 of the Criminal Code provides that the provisions of Part One of that Article shall not apply to persons who have committed a terrorist crime, an extremist crime, a crime committed as part of a criminal group, a crime against the sexual inviolability of minors, a serious or especially serious crime against the person, except in cases specifically provided for by the relevant articles of the Special Part of the Criminal Code, and others. The specifically provided cases are set out in the form of notes to the relevant articles of the Special Part of the Criminal Code. For example, a person who participates in the preparation of an act of terrorism shall be released from criminal liability if, through timely notification of state authorities or by other means, that person contributed to the prevention of the act of terrorism and if their actions do not contain the elements of another crime (Note to Article 255 of the Criminal Code, “Act of Terrorism”); a person who voluntarily ceases participation in a criminal group and actively contributes to the disclosure or prevention of crimes committed or being committed by that criminal group shall be released from criminal liability if their actions do not contain the elements of another crime (Note to Article 262 of the Criminal Code, “Creation and Leadership of an Organised Group or Criminal Organisation, as well as Participation Therein”; this Note also applies to Articles 263, 264, 265 and 268 of the Criminal Code), and so forth.
Pursuant to Part 1 of Article 36 of the Criminal Procedure Code, termination of a criminal case on the circumstances specified therein constitutes a right of the criminal prosecution authority and the court, rather than an obligation. This does not apply to cases of termination of a criminal case on the grounds specified in Part 1 of Article 68 of the Criminal Code, “Release from Criminal Liability in Connection with Reconciliation”, and Part 1 of Article 71 of the Criminal Code, “Release from Criminal Liability Due to the Expiry of the Limitation Period”. Termination of a criminal case on these grounds constitutes an obligation for the authorities conducting criminal proceedings and, in certain cases, a right, or is not permitted (Parts 2—4 of Article 68 and Parts 5—6 of Article 71 of the Criminal Code). The adoption of such procedural decisions requires the authority conducting criminal proceedings to strictly comply with the criminal-law and criminal-procedure provisions specified in Articles 68 and 71 of the Criminal Code and Article 36 of the Criminal Procedure Code, and to provide reasons for such decisions in every case.
3. Among the circumstances entailing the termination of a criminal case, a special place is occupied by release from criminal liability upon fulfilment of the conditions of a procedural agreement in the form of a cooperation agreement (Article 67 of the Criminal Code, as amended by the Law of the Republic of Kazakhstan dated 9 April 2016). At the same time, the conditions for release from criminal liability are not expressly stipulated in Article 67 of the Criminal Code. They are regulated in general terms by the provisions of Articles 618—621 of the Criminal Procedure Code, since the nature of the conditions to be fulfilled, as determined by the parties, may vary in each case involving a procedural cooperation agreement. In general, a procedural cooperation agreement (upon fulfilment of its conditions) is implemented through the exercise of the competence and powers of pre-trial investigation authorities, the prosecutor, courts of first instance and other courts, including courts at the stage of execution of judicial decisions. In particular, a case accompanied by a prosecutor's motion concerning a convicted person who has entered into a procedural cooperation agreement and fulfilled its conditions cannot be considered in conciliation proceedings and is subject to consideration in accordance with the procedure for execution of a judgment under Articles 476—478 of the Criminal Procedure Code, as emphasised by the Supreme Court in paragraph 30 of the above-mentioned Regulatory Resolution No. 4 dated 7 July 2016.
In this context, the Supreme Court also drew the attention of the courts to the fact that only criminal cases received by the court with a procedural agreement in the form of a plea bargain, as well as cases in which a plea agreement was concluded during the main court proceedings or during consideration of the case in appellate proceedings, are considered in conciliation proceedings (Regulatory Resolution of the Supreme Court No. 4 dated 7 July 2016, paragraph 30).
Regarding the possibility of terminating a criminal case in conciliation proceedings (involving an admission of guilt), the Supreme Court provided the following clarification: in conciliation proceedings, where the circumstances provided for in Part One of Article 68 of the Criminal Code are established, the court shall, in accordance with subparagraph 12) of Part One of Article 35 of the Criminal Procedure Code and subparagraph 4) of Part One of Article 626 of the Criminal Procedure Code, issue a ruling terminating the criminal proceedings in connection with reconciliation. Following consideration of a plea agreement in conciliation proceedings, the court shall not be permitted to issue a ruling terminating the case on the grounds provided for in Article 36 of the Criminal Procedure Code and Parts Two and Three of Article 68 of the Criminal Code. In such a case, the court shall be entitled to render a conviction releasing the person from criminal liability or to return the criminal case to the prosecutor (Regulatory Resolution of the Supreme Court No. 4 dated 7 July 2016, “On the Practice of Consideration of Criminal Cases by Courts in Conciliation Proceedings”, paragraph 26).
In this regard, termination of a criminal case under procedural agreements concluded in the form of a plea bargain does not fall within the competence of pre-trial investigation authorities or the prosecutor.
Termination of a criminal case, as a form of completion of proceedings in a case, affects the legal capacity of the individual to whom it relates, as well as that of the victim. Therefore, in the interests of legality and the validity of an act terminating a criminal case, termination of a case on any non-exonerating grounds at any stage of criminal proceedings shall not be permitted if the suspect, accused, defendant or victim objects thereto (Part 5 of Article 36 of the Criminal Procedure Code). As a rule, the suspect, accused or defendant objects where they do not admit their guilt in committing the crime. The reasons for the victim's objection may vary. The provisions governing the institution of release of a person from criminal liability play a significant role in preventing the secondary victimisation of the victim of a crime caused by the specific nature of criminal proceedings (for example, participation in investigative and judicial actions, which often require the presence of the subject of the criminal offence, etc.). Therefore, most victims readily agree to the need to terminate a criminal case, provided that all their rights violated by the criminal offence are fully restored, including actual compensation for the harm caused.
In this regard, the observations of the Supreme Court set out in its Regulatory Resolution No. 4 dated 21 June 2001, “On Judicial Practice in the Application of Article 68 of the Criminal Code of the Republic of Kazakhstan”, are relevant. It states that any harm caused to the victim or applicant by the criminal offence committed by the person, including moral, physical and property damage, shall be regarded as harm subject to redress. In doing so, not only direct losses but also indirect losses associated with the criminal offence shall be taken into account, including expenses incurred in connection with participation in the preliminary investigation and court proceedings, including expenses for legal representation. Redress for harm may take the form of restoration of damaged property, return of stolen property or provision of equivalent property, payment of monetary compensation, purchase of medicines, provision of sanatorium and resort vouchers, an apology to the victim or applicant, and other forms not prohibited by law (paragraph 5). It is necessary to carefully establish precisely what harm was caused to the victim or applicant and whether it has been fully redressed by the person who committed the criminal offence. Compensation for the harm caused must be sufficient from the perspective of the victim or applicant, rather than the person who committed the criminal offence. Criminal prosecution authorities and the court shall not be entitled to alter the victim's or applicant's claims regarding the amount of harm subject to redress. The existence of a dispute between the parties regarding the amount of compensation for harm indicates that reconciliation has not taken place, and in such a situation the person who committed the criminal offence cannot be released from criminal liability under Article 68 of the Criminal Code. Redress for harm must be real and must precede the reconciliation of the parties and the adoption of a decision to release the person who committed the criminal offence from criminal liability. The victim's or applicant's voluntary waiver of claims against the person who committed the criminal offence for redress of harm shall not be regarded as a failure by that person to fulfil the obligation to redress such harm and shall not, in itself, constitute an obstacle to reconciliation between the parties. For the purposes of applying Article 68 of the Criminal Code, it is irrelevant who provided redress for the harm: the person who committed the criminal offence personally or, at their request, their relatives, other persons or organisations (paragraph 6).
Reconciliation is expressed through a request by the victim to terminate the criminal case initiated against the person who committed the crime. The victim's expression of will shall be formalised in a written application or recorded in the minutes of their interrogation at the preliminary investigation stage (this may also be a separate protocol specifically for this occasion — author's note, M. K.) or in the minutes of the court hearing. Where the victim or applicant submits a motion to mitigate the punishment of the accused (defendant) due to the absence of financial claims against them, the authority conducting the criminal proceedings shall be obliged to establish whether reconciliation has taken place between the person who committed the criminal offence and the victim or applicant, and whether there are any other grounds required for the application of Article 68 of the Criminal Code (paragraph 7). The fact that the victim or applicant expressed their will voluntarily and freely when exercising their right to reconciliation forms part of the subject matter of proof in the case. An application for reconciliation submitted by the victim or applicant under coercion by any person shall not serve as grounds for releasing the person who committed the criminal offence from criminal liability. The participation of other persons (relatives, friends, colleagues, representatives of state organisations or public associations, etc.) in the reconciliation procedure with the consent of the parties does not, in itself, exclude the voluntary and free expression of the victim's or applicant's will in exercising their right to reconciliation. Criminal prosecution authorities and the court shall not be entitled to participate in the reconciliation process between the parties for any purpose; they may only explain to the victim, applicant and the person who committed the criminal offence their rights, grounds and procedure for reconciliation (paragraph 8 of the aforementioned Regulatory Resolution of the Supreme Court).
Termination of a criminal case at the pre-trial investigation stage is permitted only after a ruling on the legal classification of the suspect's act has been issued in cases concluded with an indictment. The prosecutor shall be entitled to terminate a criminal case following examination of the case received by them together with the indictment. The prosecutor shall be entitled to terminate a criminal case by issuing a decision on the application of summary proceedings in cases involving minor crimes. Similarly, the head of the inquiry body shall also be entitled to terminate a criminal case completed under the summary proceedings procedure in respect of a criminal misdemeanour following examination thereof (subparagraph 2) of Part 1 of Article 301, subparagraph 4) of Part 1 of Article 302, subparagraphs 2) and 4) of Part 3 of Article 528, subparagraph 2) of Part 1 and subparagraph 2) of Part 4 of Article 629-3 of the Criminal Procedure Code). It is precisely at this stage of the pre-trial investigation that the overall picture of the criminal offence becomes complete and the attitude of the suspect or accused towards the act committed becomes clear. At the judicial stages, this may take place during the preparation of the case for trial by the court, and during the main court proceedings — before the court retires to the deliberation room to render a judgment. In substantiating the possibility of terminating a criminal case on the grounds provided for in Article 36 of the Criminal Procedure Code, the Supreme Court stated in the aforementioned Regulatory Resolution that release from criminal liability under Article 68 of the Criminal Code in the court of cassation shall be permissible only where the circumstances providing grounds for the application of Article 68 of the Criminal Code were established in the court of first instance or appellate court, but the court unlawfully or unjustifiably failed to apply that law (paragraph 19). It appears that the position of the Supreme Court is directly relevant to the procedure for terminating a criminal case on other non-exonerating grounds in higher courts and is consistent with the provisions of the Criminal Procedure Code regulating the right of appellate and cassation courts to terminate a criminal case on the grounds specified in Part 1 of Article 36 of the Criminal Procedure Code (subparagraph 3) of Part 1 of Article 431, subparagraph 3) of Part 7 of Article 494).
Pursuant to Part 2 of Article 36 of the Criminal Procedure Code, a full or partial refusal by the public prosecutor to prosecute, following the results of the judicial investigation or court debates, should be regarded as a right where such refusal is associated with the discovery of circumstances permitting the non-prosecution of a person. If the victim supports such refusal, the court shall adopt a decision to terminate the criminal case on the relevant non-exonerating ground in connection with which the refusal was declared (subparagraph 9) of Part 1 of Article 23, Parts 6—7 of Article 337 of the Criminal Procedure Code). At the same time, even if such a situation arises, the court shall not be entitled to terminate the criminal case if, contrary to the prosecutor's position, the victim expresses a desire to continue supporting, personally or through a representative, all or part of the charge from which the prosecutor has withdrawn. In such a case, the proceedings shall continue in the ordinary manner and conclude with the rendering of the appropriate type of judgment. This procedure does not contradict the nature of the principle of adversarial proceedings and equality of the parties in criminal proceedings and is aimed at establishing the truth in the case.
As for the conditions for release from punishment subject to the establishment of a guarantee, they are determined by the provisions of Article 69 of the Criminal Code and Part 6 of Article 36 of the Criminal Procedure Code, are reflected in a conviction releasing the person from punishment, and consist of the following universally binding rules which the court must follow in the case (Part 6 of Article 36 of the Criminal Procedure Code).
Before rendering such a judgment, where the relevant grounds exist, the court must always obtain the consent of the accused or the victim to release the person from criminal liability subject to the establishment of a guarantee.
The grounds under consideration shall not apply to persons who have committed corruption crimes, terrorist crimes, extremist crimes, crimes committed as part of a criminal group, or crimes against the sexual inviolability of minors. Their application may take place only in cases involving criminal misdemeanours committed for the first time or minor or medium-gravity crimes committed for the first time, which are not associated with causing death or grievous bodily harm and for which the relevant article or part of an article of the Special Part of the Criminal Code provides for a fine among the other types of principal penalties. In essence, the establishment of a guarantee consists of the deposit of bail by an individual acting as guarantor in an amount equal to the maximum amount of the fine prescribed for the criminal offence committed. Where a criminal misdemeanour is committed, the guarantee period shall range from six months to one year; for a minor crime — from one year to two years; and for a medium-gravity crime — from two to five years. If the person released from punishment does not commit a new criminal offence during the guarantee period, the bail shall be returned to the guarantor upon expiry of the guarantee period. If the person commits a new criminal offence during the guarantee period, the court shall revoke the decision to release that person from punishment and impose a penalty in accordance with the rules for sentencing on the aggregate of judgments. At the same time, the bail shall be transferred to state revenue by the court judgment. (See also the commentary on the provisions of Article 145 of the Criminal Procedure Code).
Commentary of 2020 on the Criminal Procedure Code of the Republic of Kazakhstan by Marat Chekishovich Kogamov, Doctor of Law, Honorary Lawyer of Kazakhstan, Professor, Academician of the Kazakhstan National Academy of Natural Sciences, Honoured Worker of the Ministry of Internal Affairs of the Republic of Kazakhstan.
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