Commentary on Article 37. Physical or Mental Coercion of the Criminal Code of the Republic of Kazakhstan

1. The infliction of harm upon interests protected by this Code as a result of physical or mental coercion shall not constitute a criminal offence if, as a consequence of such coercion, the person was unable to control his or her actions (inaction).

2. The issue of criminal liability for inflicting harm upon interests protected by this Code as a result of physical or mental coercion, where the person retained the ability to control his or her actions, shall be resolved taking into account the provisions of Article 34 of this Code.

The introduction of the institution of physical or mental coercion is обусловлено the emergence of numerous cases in which, under the influence of physical force, a person commits socially dangerous acts causing harm to the legitimate interests of citizens and organizations. Article 37 of the Criminal Code determines the legal consequences of acts committed under the influence of coercion. Such acts are not recognized as criminal offences.

Coercion should be understood as unlawful influence exerted against a person's will for the purpose of compelling that person to perform certain actions or refrain from performing them.

The criminal-law content of coercion is revealed through a structure determined by a combination of the most important and mandatory elements constituting the criminal-law phenomenon of coercion. These elements include psychological violence and a criminal demand (together, they may also be referred to as an act of coercion).

The essence of coercion is expressed in the fact that a criminal demand is presented to a person and reinforced by certain actions.

The content of Article 37 of the Criminal Code gives rise to two grounds for classifying coercion: according to the method: (a) physical; (b) mental; according to its nature: (a) irresistible; (b) resistible.

It may be concluded that physical and mental violence constitute methods of coercion. Violence may be directed not only against the person being coerced but also against persons close to that person (for example, a threat to cause grievous harm to the health of the victim's child).

According to S. I. Ozhegov's Dictionary of the Russian Language, coercion means the necessity to "force a person to do something against his or her will."

Pursuant to Part 1 of Article 37 of the Criminal Code: "The infliction of harm upon interests protected by this Code as a result of physical or mental coercion shall not constitute a criminal offence if, as a consequence of such coercion, the person was unable to control his or her actions (inaction)."

This provision covers situations in which the person causing the harm acts under either physical or mental coercion that deprives that person of the ability to act at his or her own discretion, that is, to control his or her actions. Such actions (inaction) are considered under the rules governing irresistible force, which excludes guilt and, consequently, criminal liability.

Irresistible force created by physical or mental influence means a condition in which the person being coerced becomes incapable of controlling his or her conduct.

Physical violence may consist of torture, physical abuse, strangulation, restraint by binding, confinement, gas poisoning, etc.

In cases of mental coercion, the coercer often exerts a direct influence on the psyche of the person being coerced through the use of narcotic drugs and psychotropic substances or hypnosis, seeking to direct the latter's mental activity and behaviour in the direction desired by the coercer. In the circumstances indicated, the person causing the harm may lose the ability to understand the actual nature and social danger of his or her actions (inaction) and/or to control them under the influence of mental coercion.

External influence on a person's psyche may cause a state of insanity, which excludes criminal liability for the act committed in accordance with Article 16 of the Criminal Code. Mental coercion may cause a mental disorder in the person being coerced, depriving that person of the ability to engage in conscious and volitional behaviour. Part 1 of Article 37 of the Criminal Code refers to this type of unconscious, impulsive behaviour arising under the influence of irresistible mental coercion that excludes the criminality of the act.

In cases where physical or mental coercion is resistible and avoidable, and the person being coerced retains the ability to control his or her actions, the issue of criminal liability for the infliction of harm shall be resolved, pursuant to Part 2 of Article 34 of the Criminal Code, in accordance with the rules governing necessity.

The fact that physical coercion is directed at restricting physical functions means that physical coercion consists of an impact upon bodily integrity, as a result of which a person is deprived of the ability to control his or her actions.

The irresistibility of physical coercion presupposes that a person has found himself or herself in circumstances in which he or she is completely deprived of the ability to control his or her actions.

In accordance with the provisions of the law, an act is recognized as a criminal offence if it is performed under the control of the will. The absence of a volitional character in the actions performed by a person excludes that person's criminal liability. The infliction of harm upon legally protected rights and interests under coercion means the commission of a socially dangerous act against a person's will under the influence of external factors threatening benefits of significance to that person (life and health). If a person is unable to control his or her actions, that person shall not be held liable for the damage caused from the standpoint of criminal law.

It is my opinion that, in such cases, the issue should be regarded as the absence of the subjective element of the corpus delicti, since the person's will to cause harm is absent and his or her conduct is not volitional; consequently, it cannot be regarded as criminal due to the absence of the elements of a criminal offence, rather than by virtue of Article 37 of the Criminal Code, although the absence of the elements of a criminal offence is also present in such cases.

The infliction of harm as a result of physical coercion should be distinguished from coercion arising as a result of irresistible force. Irresistible force refers to cases in which, under the influence of natural forces, animals, mechanisms, people, etc., a person is unable to perform his or her duties or other actions, or is compelled to perform actions that are not determined by his or her will.

Physical coercion that takes the form of an attack may, in my opinion, under certain circumstances, constitute grounds for necessary defence. Since Part 2 of Article 37 of the Criminal Code does not provide an answer to this question, it may be concluded that, in such cases, the issue of the criminal liability of a person acting under necessary defence while being coerced shall be resolved taking into account the provisions of Article 32 of the Criminal Code.

Part 2 of Article 37 of the Criminal Code refers to physical and mental coercion as a result of which a person has retained the ability to control his or her actions. In such cases, the issue of liability is resolved in accordance with the rules governing necessity, since such coercion does not deprive a person of the ability to control his or her actions, thereby allowing the person to choose between the threatened consequence and the harm that must be caused in order to eliminate the danger. Such coercion may take the following forms: 1) physical influence in the form of beatings, torture, etc.; 2) mental influence through threats to use physical or physiological force, etc.

The harm caused under such coercion must always be less than the harm prevented. In addition, the harm must be recognized as the only possible means of saving a more valuable interest.

Mental coercion is influence upon a person's will through words, symbols, gestures, the demonstration of weapons or their replicas, that is, through threats. For example, a cashier is demanded to hand over the proceeds under the threat of the use of a weapon. Such actions may cause a person to experience fear and apprehension for his or her life, health, property, and the same benefits of persons close to him or her, as well as for their well-being. Under the influence of such coercion, a person may commit acts provided for by criminal law. However, in cases of mental coercion, a person always retains the possibility of choosing his or her behaviour. If a person performs the demanded act, it is examined under the rules governing necessity in order to determine whether that act is dangerous or not.

If, as a result of physical coercion, a person has retained the ability to control his or her actions, that is, has not been completely deprived of the freedom to choose his or her actions, but allows unlawful actions (inaction) to be committed in order to avoid adverse consequences resulting from the coercion applied to him or her, then the issue of that person's criminal liability for causing harm to legally protected interests shall be resolved in accordance with the rules governing necessity (Article 34 of the Criminal Code). In this case, the person acts (or refrains from acting) by choosing between the threatened harm and the harm necessary to eliminate that threat.

A threat to take the life of the person being coerced or of persons close to that person should be regarded as the most severe degree of mental coercion. Therefore, if a bank cashier, under the threat of death, hands over the keys to a safe containing valuables to attackers and informs them of the lock combination, he or she acts in a state of necessity.

Severe physical coercion in the form of torture or a threat to life should exclude liability for any criminal offence, except murder.

A person who coerces others into committing a criminal offence must bear criminal liability in cases of both physical and mental coercion, regardless of whether the person being coerced retained the ability to control his or her actions (inaction). The act committed must be classified as indirect perpetration of a criminal offence (Part 2 of Article 28 of the Criminal Code).

If the person being coerced is capable of controlling his or her conduct, the classification of coercion should be based on the general provisions constituting the institution of complicity: either as incitement to commit a criminal offence, where the actions of the person being coerced contain the elements of a criminal offence, or as perpetration of a criminal offence if the person being coerced is not subject to criminal liability by virtue of circumstances excluding the criminality of the act.

In conclusion, it should be noted that the conditions for the lawfulness of causing harm under physical and mental coercion may be divided into: 1) conditions of lawfulness relating to the act of coercion; and 2) conditions of lawfulness relating to the compelled act.

The conditions of lawfulness relating to the act of coercion are:

the social danger of the act of coercion;

the source of coercion. The source of coercion is the criminal coercive actions of a person (the coercer);

the immediacy of coercion;

the reality (genuineness) of the violence.

The conditions of lawfulness relating to the compelled act are:

the irresistibility of coercion;

the impossibility of preventing the harm by other means;

the proportionality of the harm caused and the harm prevented.

The issue of criminal liability for actions committed as a result of physical and mental coercion may be resolved in one of three ways: a state of necessity exists; the limits of necessity have been exceeded; or, where the intensity of coercion is insignificant, no state of necessity exists.

If a person being coerced who is capable of controlling his or her actions exceeds the limits of necessity and, at the same time, intentionally causes harm to legally protected interests, such an act is considered a criminal offence committed in the presence of mitigating circumstances provided for in Subparagraph 9) of Part 1 of Article 53 of the Criminal Code. In cases where a state of necessity is not established, the physical or mental coercion applied to the person causing the harm may be considered a mitigating circumstance provided for in Subparagraph 8) of Part 1 of Article 53 of the Criminal Code.

It should be noted that the Code of Administrative Offences of the Republic of Kazakhstan also provides for a separate article regulating the issue of exemption from administrative liability as a result of physical and mental coercion (Article 38 of the Code of Administrative Offences).

Commentary to the Criminal Code of the Republic of Kazakhstan, 2021, by Isidor Shamilovich Borchashvili, Honoured Figure of Kazakhstan, Doctor of Law, Professor, Academician of the National Academy of Natural Sciences of Kazakhstan, 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, Honoured Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.

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