Commentary on Article 53 of the Criminal Code of the Republic of Kazakhstan. Circumstances Mitigating Criminal Liability and Punishment
1. Circumstances mitigating criminal liability and punishment shall be recognized as follows:
1) commission of a criminal misdemeanor for the first time or commission of a minor or medium-gravity crime for the first time as a result of a fortuitous combination of circumstances;
2) minority of the offender;
3) pregnancy;
4) the offender having young children;
5) provision of medical or other assistance to the victim immediately after the commission of a criminal offense, regardless of the consequences of providing such assistance;
6) voluntary compensation for property damage caused as a result of a criminal offense, and redress for moral and other harm caused by the criminal offense;
7) commission of a criminal offense due to a combination of difficult personal, family or other circumstances, or for reasons of compassion;
8) commission of a criminal offense as a result of physical or psychological coercion, or due to material, official or other dependence;
9) commission of a criminal offense in violation of the conditions of lawfulness of necessary defense, extreme necessity, detention of a person who has committed an offense, justified risk, execution of an order or directive, or in the conduct of operational-search, counterintelligence measures or covert investigative actions;
10) unlawfulness or immorality of the victim's conduct that served as the cause of the criminal offense;
11) sincere remorse, voluntary surrender, active assistance in the detection of a criminal offense, exposure of other accomplices to the criminal offense, and tracing of property obtained as a result of the criminal offense.
2. When imposing a sentence, circumstances not provided for in part one of this Article may also be taken into account as mitigating circumstances.
3. If a mitigating circumstance is provided for in the relevant article of the Special Part of this Code as an element of a criminal offense, it may not, in itself, be taken into account again when imposing a sentence.
Circumstances mitigating criminal liability and punishment are understood as circumstances indicating a significant reduction in the degree of public danger posed by the criminal offense committed and the personality of the offender.
The list of circumstances provided for in the Article under consideration grants the court the right to:
impose, where the sanction is alternative, a less severe type of punishment provided for within the limits of the sanction of the relevant article of the Special Part of the Criminal Code of the Republic of Kazakhstan;
impose the minimum amount of punishment provided for within the limits of the sanction of the relevant article of the Special Part of the Criminal Code of the Republic of Kazakhstan;
in accordance with Article 55 of the Criminal Code, impose a more lenient punishment than that provided for the act in question;
apply, pursuant to Article 63 of the Criminal Code, a suspended sentence and, pursuant to Articles 74 and 76 of the Criminal Code, deferment of serving the sentence.
Commission of a criminal misdemeanor for the first time or commission of a minor or medium-gravity crime for the first time as a result of a fortuitous combination of circumstances
This circumstance represents a less dangerous manifestation and indicates the absence of a persistent antisocial orientation in the offender, as well as the absence of any connection between the criminal offense committed and the offender's previous conduct and lifestyle. The legislator classifies as such persons those who have not previously committed criminal offenses. This category also includes persons who previously committed a criminal offense, but in respect of whom the limitation periods for bringing them to criminal liability have expired (Article 71 of the Criminal Code), the limitation periods for an indictment have expired (Article 77 of the Criminal Code), their criminal record has been expunged as a result of amnesty or pardon acts (Article 78 of the Criminal Code), or their criminal record has been removed or extinguished on general grounds (Article 79 of the Criminal Code).
In accordance with paragraph 12 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated December 25, 2007, “On the Application by Courts of Legislation on Recidivism of Crimes,” removal of a criminal record on the basis of an amnesty law or in connection with a pardon, pursuant to part 9 of Article 79 of the Criminal Code, nullifies all criminal-law consequences associated with that criminal record. In this regard, it should be taken into account that, pursuant to part 4 of Article 78 of the Criminal Code, in the event of a pardon, a person convicted of a crime may be released from further serving the sentence, or the sentence imposed on that person may be reduced or replaced with a more lenient type of punishment, or such person may be released from an additional punishment. At the same time, the criminal record of a person who has served the sentence or has been released from further serving it may be removed by an act of pardon.
The definition of a criminal misdemeanor is provided in part 3 of Article 10 of the Criminal Code. The classification of crimes as minor or medium-gravity crimes is determined in accordance with parts 2 and 3 of Article 11 of the Criminal Code (see the commentary to part 3 of Article 10 and parts 2 and 3 of Article 11 of the Criminal Code).
A fortuitous combination of circumstances is not severe in nature in terms of its content, but may provoke a person into unlawful conduct. Such circumstances may include: a person's misconception regarding the degree of danger of the act committed; a person's accidental, one-time presence in a group of individuals committing criminal acts who involved that particular person in the commission of such acts; the commission of criminal acts that are clearly uncharacteristic of the offender (the person had an exclusively positive record, worked conscientiously, studied, was a homebody, had a mild temperament, etc.).
The question of whether the act committed was characteristic of the particular person or whether the person was influenced by random, spontaneously arising circumstances may be resolved within the framework of a forensic psychological examination or a consultation with a psychologist, by diagnosing the basic personality traits and establishing the offender's value orientations. The main point is to establish that the combination of circumstances arose spontaneously and independently of the person who committed the criminal offense.
It should be noted that, when a crime is committed, the legislator recognizes this circumstance as mitigating only if all three conditions are present: the crime was committed for the first time, the crime committed belongs to the category of minor or medium-gravity crimes, and the crime was committed as a result of a fortuitous combination of circumstances.
Minority of the offender
The classification of this circumstance as one mitigating criminal liability and punishment is associated with the age-related characteristics of this category of persons: their level of consciousness, volitional qualities, the incomplete formation of their character, as well as the individual characteristics and intellectual development of the minor.
Pursuant to part 1 of Article 80 of the Criminal Code, minors are persons who, at the time of committing a criminal offense, have reached the age of 14 but have not yet reached the age of 18. At the same time, the fact of minority is determined at the time the criminal offense is committed. Therefore, a person who committed a criminal offense while under the age of majority, even if that person has reached the age of 18 by the time of criminal prosecution or consideration of the criminal case by the court, is recognized as a minor.
When determining age, the provision that a person is considered to have reached a certain age starting from zero hours on the day following their birthday should be taken into account. A person who commits a criminal offense on the day of their 18th birthday is considered not to have reached the age of majority.
If documents confirming age are absent or there are doubts as to the authenticity of such documents, an expert examination must be ordered in accordance with paragraph 3) of part 1 of Article 271 of the Criminal Procedure Code. In such cases, the date of birth shall be considered the last day of the year specified by the experts. Where experts determine a person's age within a minimum and maximum number of years (for example, from 14 to 15 years), the minimum age proposed by the expert examination must be used. This is also indicated in paragraph 2 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated April 11, 2002, “On Judicial Practice in Cases Involving Criminal Offenses Committed by Minors and Their Involvement in the Commission of Criminal Offenses and Other Antisocial Acts.”
When imposing punishment on minors, other mitigating circumstances provided for in part 1 of Article 82 of the Criminal Code are also taken into account.
It should also be noted that the criminal law allocates issues of criminal liability and punishment of minors to a separate Section 6 of the General Part of the Criminal Code, while Chapter 2 of the Special Part addresses criminal offenses against the family and minors. In Section 11 of the Criminal Procedure Code, which concerns special proceedings, the legislator has provided for a special Chapter 56, “Proceedings in Cases Involving Criminal Offenses Committed by Minors.”
Pregnancy
Recognition of pregnancy as a mitigating circumstance is based on the principle of humanism and is dictated by the need to protect the interests of the unborn child and the woman herself, as provided for in Article 27 of the Constitution of the Republic of Kazakhstan.
Functional changes in a woman's body caused by pregnancy often affect her psyche and the motives underlying her behavior, and are accompanied by increased sensitivity, receptiveness and irritability, which may be one of the reasons for committing a criminal offense.
The duration of pregnancy, the degree to which pregnancy influenced the woman's decision to commit a criminal offense, and the category of the crime committed are irrelevant for recognizing pregnancy as a mitigating circumstance.
The existence of pregnancy may serve as grounds for granting the convicted woman a deferment of serving her sentence, as provided for in Article 74 of the Criminal Code.
The offender having young children
The classification of this circumstance as mitigating is обусловлено by concern for children, arising from the principle of humanism and the need to take into account the interests of the family and young children. Article 27 of the Constitution of the Republic of Kazakhstan also points to this circumstance. Taking this circumstance into account is also consistent with the provision of part 3 of Article 52 of the Criminal Code, according to which the court must assess the impact of the punishment it imposes on the living conditions of the convicted person's family or persons dependent on that person.
According to subparagraphs 8) and 11) of paragraph 1 of Article 1 of the Code of the Republic of Kazakhstan dated December 26, 2011, “On Marriage (Matrimony) and Family,” a child (children) is a person who has not reached the age of eighteen (majority), and childhood is the legal status of persons who have not reached the age of majority.
When individualizing liability, as well as when deciding on the type and amount of punishment, the court must assess the significance of this circumstance. The existence of such a circumstance may also serve as grounds for imposing on the offender a more lenient punishment than that provided for the commission of a criminal offense (Article 55 of the Criminal Code), or for deferring the serving of a sentence for women who have young children and men who are raising young children alone (Article 74 of the Criminal Code). For this circumstance to be recognized as mitigating, it is irrelevant whether the young child is the offender's biological or adopted child; or whether the offender is the child's mother or father.
This circumstance may not be recognized as mitigating where it is established that the offender does not participate in raising or financially supporting the children; has been deprived of parental rights; has not lived with the family for an extended period; treats the children cruelly; or has committed criminal acts against the children.
According to paragraph 7 of clause 4 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan “On Certain Issues of Sentencing”: “The existence of young children may not be recognized, in accordance with paragraph 4) of part one of Article 53 of the Criminal Code, as a circumstance mitigating the criminal liability and punishment of the offender if the act committed by the offender was directed against their own young children, or if the young children are not dependent on the defendant, or if the defendant has been deprived of parental rights.”
Provision of medical or other assistance to the victim immediately after the commission of a criminal offense, regardless of the consequences of providing such assistance
These circumstances positively characterize the offender, indicate awareness of the harmful nature of their actions and a desire to reduce their guilt. The provision of medical or other assistance to the victim acquires the character of a mitigating circumstance if it is done immediately after the commission of the criminal offense. The provision of medical or other assistance to the victim may take the form of providing first aid, transporting the victim to a hospital, calling the victim's relatives by telephone or taking the victim home, as well as other actions that are of decisive importance in saving the victim and helping to reduce the harm caused by the criminal offense.
Voluntary compensation for property damage caused as a result of a criminal offense, and redress for moral and other harm caused by the criminal offense
The actions of the offender aimed at voluntarily compensating for property damage and redressing moral and other harm caused as a result of a criminal offense indicate positive post-criminal conduct on the part of the offender.
Compensation for property damage or redress for moral or other harm acquires the character of a mitigating circumstance if it is carried out voluntarily by the offender, that is, of their own free will, without coercive influence on them by the inquiry, investigation or prosecution authorities.
Voluntary compensation for property damage is expressed in the offender's voluntary redress of material harm by reimbursing the value of stolen items, replacing them with other items of equal value, or providing compensation in another form. In cases where, during criminal prosecution, the guilty person did not conceal the location of the stolen property and did not obstruct its discovery, but voluntarily indicated where it was located, thereby enabling the stolen property to be seized and returned to the victim, such compensation for damage, with the participation of the offender, may also be recognized as voluntary.
According to paragraph 3 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated November 27, 2015, “On the Application by Courts of Legislation on Compensation for Moral Harm,” moral harm is the mental or physical suffering experienced by a citizen as a result of the unlawful violation, diminution or deprivation of their personal non-property rights and benefits.
Mental suffering, as emotional and volitional experiences of a person, should be understood as feelings of humiliation, irritation, depression, anger, shame, despair, inferiority, discomfort, etc. These feelings may be caused, for example, by an unlawful encroachment on the life and health of the victim themselves or their close relatives (parents, spouse, child, brother or sister); unlawful deprivation or restriction of liberty or the right to freedom of movement; harm to health, including scars and marks that disfigure exposed parts of the human body; disclosure of family, personal or medical secrets; violation of the confidentiality of correspondence, telephone or telegraph communications; dissemination of untrue information discrediting the honor and dignity of a citizen; violation of the right to a name or image; violation of their copyright and related rights, etc.
Under part 1 of Article 951 of the Civil Code, moral harm means the violation, diminution or deprivation of personal non-property benefits and rights of individuals, including mental or physical suffering (humiliation, irritation, depression, anger, shame, despair, physical pain, inferiority, a state of discomfort, etc.) experienced (endured, undergone) by the victim as a result of an offense committed against them, and, in the event of their death as a result of such an offense, by their close relatives and spouse.
According to paragraph 1 of Article 952 of the Civil Code, moral harm is compensated in monetary form. When determining the amount of moral harm, as follows from part 2 of Article 952 of the Civil Code, both the victim's subjective assessment of the severity of the moral damage caused, or, in the event of the victim's death as a result of an offense committed against them, the assessment of their close relatives or spouse, and objective data indicating the degree of mental and physical suffering of the victim or, in the event of their death, of their close relatives or spouse must be taken into account: the vital importance of the benefit that was the object of the encroachment (life, health, honor, dignity, liberty, inviolability of the home, etc.); the severity of the consequences of the offense (murder of close relatives, bodily injuries resulting in disability, deprivation of liberty, loss of employment or housing, etc.); the nature and scope of dissemination of false defamatory information; the victim's living conditions (professional, family, domestic, financial circumstances, state of health, age, etc.); and other circumstances deserving attention.
Moral harm, according to paragraph 3 of the said Article, is compensated regardless of the property damage subject to compensation.
Redress for moral harm as a mitigating circumstance consists of providing moral satisfaction to the victim and may be expressed in offering an apology, asking for forgiveness, publicly retracting previously made defamatory fabrications, etc. At the same time, the fact that moral harm has been redressed fully or partially is relevant when determining the specific punishment.
Other harm is expressed in the form of losses, expenses, any costs associated with the unlawful actions of persons who committed a criminal offense, lost income, as well as infringement (violation) of the victim's labor, housing, pension and other rights.
It should be borne in mind that redress by the offender for harm caused as a result of committing a criminal misdemeanor or committing a crime for the first time is, in relation to Article 65 of the Criminal Code, one of the conditions for their release from criminal liability in connection with active repentance (see the commentary to Article 65 of the Criminal Code).
A person who has committed a criminal misdemeanor or a minor or medium-gravity crime not involving death is subject to release from criminal liability if they have reconciled with the victim or applicant, including through mediation, and have redressed the harm caused (see the commentary to Article 68 of the Criminal Code).
Commission of a criminal offense due to a combination of difficult personal, family or other circumstances, or for reasons of compassion
A combination of difficult personal, family or other circumstances, or a motive of compassion, is classified as a mitigating circumstance only if such circumstances existed before or during the commission of the criminal offense and are causally connected with the act committed, that is, if the crime committed is closely connected with them. Difficult personal, family or other circumstances are an evaluative concept and depend on many factors of both an objective and subjective nature. These include: a spouse's alcoholism – in cases of causing harm to health; lack of means of subsistence due to loss of employment – in cases of robbery or theft; a serious illness of the offender or their close relatives – in cases of acquiring narcotic drugs, psychotropic substances or their analogues; poor domestic living conditions – in cases of giving a bribe, etc.
Commission of a criminal offense out of compassion refers to cases in which an act is committed out of pity or sympathy caused by someone's misfortune or grief (for example, administering a large dose of medication at the request of a seriously ill person, where the offender knows in advance that the medication will cause the patient's death, etc.).
Commission of a criminal offense as a result of physical or psychological coercion, or due to material, official or other dependence
Commission of a criminal offense as a result of physical or psychological coercion, or due to material, official or other dependence, may be recognized as a circumstance mitigating punishment only if the court establishes that such dependence or coercion actually existed and that the actions were compelled, where the will of the person being coerced is suppressed, but the person is not completely deprived of the ability to resist the coercion. Otherwise, the issue should be one of causing harm without guilt and the absence of the elements of a criminal offense in the actions of the offender.
Coercion is the suppression of a person's will through violence or the threat of violence, turning a person subjected to pressure into a kind of instrument for carrying out certain actions that arise as a result of the conscious activity of third parties. One form of psychological coercion is a threat to kill, destroy property, etc. Coercion combined with physical influence on the subject of a criminal offense is more dangerous.
It should be noted that, pursuant to Article 36 of the Criminal Code, causing harm to interests protected by criminal law as a result of physical or psychological coercion does not constitute a criminal offense if, as a result of such coercion, the person was unable to control their actions (inaction). Likewise, causing harm to interests protected by criminal law by a person acting in execution of an order or directive that is binding upon them does not constitute a criminal offense. Criminal liability for causing such harm shall be borne by the person who issued the unlawful order or directive (part 1 of Article 38 of the Criminal Code).
Material dependence is a situation in which the guilty person is fully or partially dependent on the victim for their maintenance, and the receipt of means of subsistence, their amount and nature depend on another person.
Official dependence consists in the subordination of the guilty person to the victim in the course of their service or in being under the victim's official supervision, where one person, by virtue of their official position, has the rights or opportunities to cause harm to another person (imposing disciplinary sanctions, reducing wages, demotion, dismissal, etc.).
Other dependence means dependence that develops in view of the sphere and conditions of a person's life and activities and that served as an incentive to commit the criminal offense, which must be established in each specific case. Thus, dependence on a particular person may arise as a result of family or marital relations, teacher-student relations, patient-doctor relations, etc.
Commission of a criminal offense in violation of the conditions of lawfulness of necessary defense, extreme necessity, detention of a person who has committed an offense, justified risk, execution of an order or directive, or in the conduct of operational-search, counterintelligence measures or covert investigative actions
To recognize this circumstance as one mitigating criminal liability and punishment, it is necessary to proceed from the provisions of Articles 32–37 of the Criminal Code. These circumstances may be recognized as mitigating if they do not form part of the disposition of the following articles of the Criminal Code: murder committed in excess of the limits of necessary defense (Article 102 of the Criminal Code); murder committed in excess of the measures necessary to detain a person who has committed a crime (Article 103 of the Criminal Code); infliction of grievous bodily harm in excess of the limits of necessary defense (Article 112 of the Criminal Code); infliction of grievous bodily harm during the detention of a person who has committed a crime (Article 113 of the Criminal Code).
Although criminal liability is not eliminated when the conditions of lawfulness or the rules for implementing a particular circumstance excluding the criminality of an act are violated, the actions of the person in such situations are less dangerous, since their motive is to protect legally protected personal, public and state interests from socially dangerous encroachments. This may occur, for example, when the limits of necessary defense or extreme necessity are exceeded, when detaining an offender, in the event of justified risk, or when executing an order or directive.
According to Article 66 of the Criminal Code, a person who has exceeded the limits of necessary defense as a result of fear, fright or confusion caused by a socially dangerous encroachment may, taking into account the circumstances of the case, be released from criminal liability.
Unlawfulness or immorality of the victim's conduct that served as the cause of the criminal offense
Mitigation of criminal liability and punishment in such cases is обусловлено by the fact that the commission of the criminal offense was provoked by the unlawful and immoral conduct of the victim themselves.
Unlawful conduct of the victim means deviation from the requirements of legal provisions (criminal, administrative, family law, etc.). Thus, unlawful conduct may be expressed in beatings, abuse (mockery), severe insults, humiliation of human dignity, as well as abuse of official powers, blackmail and other actions. In addition, the unlawfulness of the victim's conduct as a cause of the commission of a crime may, in certain cases, compete with another mitigating circumstance, such as exceeding the limits of necessary defense.
Immoral conduct of the victim consists in violating the moral, ethical and behavioral rules of conduct in society. Manifestations of immoral conduct may include deception, betrayal, sexual harassment, marital infidelity, etc. At the same time, the degree of manifestation of the victim's immoral conduct must be characterized by sufficient cynicism and insolence.
Immoral conduct is generally associated with a state of affect in the guilty person. Intense emotional disturbance may be caused by sudden violence, abuse or severe insult on the part of the victim. A state of affect may also occur where a psychologically traumatic situation develops under the influence of systematic beatings, abuse, torture or constant psychological pressure exerted by the victim.
In a number of provisions of the Special Part of the Criminal Code of the Republic of Kazakhstan, unlawful or immoral conduct of the victim that contributed to the commission of a criminal offense is specified in the disposition: murder committed in a state of affect (Article 101 of the Criminal Code); infliction of harm to health in a state of affect (Article 111 of the Criminal Code).
The characteristics of unlawfulness and immorality may coincide in certain cases, but in individual cases unlawful actions may also have a moral basis.
Sincere remorse, voluntary surrender, active assistance in the detection of a criminal offense, exposure of other accomplices to the criminal offense, and tracing of property obtained as a result of the criminal offense
It should be noted that the circumstances listed above, when accompanied by other circumstances provided for in Articles 65 and 68 of the Criminal Code, may constitute grounds for release from criminal liability. According to part 1 of Article 182 of the Criminal Procedure Code, voluntary surrender is a person's personal, voluntary, written or oral communication to a criminal prosecution authority concerning a criminal offense committed or being prepared by that person, when that person has not yet been recognized as a suspect or detained on suspicion of committing the given criminal offense.
Sincere remorse in itself indicates that the person has begun to reform, that the criminal's antisocial views and character traits are unstable, and that the person poses a lower degree of danger to society. Sincere remorse is not merely an admission of guilt, but also genuine regret and condemnation of one's own conduct.
Voluntary surrender is closely associated with remorse, that is, voluntarily appearing before law enforcement authorities and reporting the crime committed, condemning one's own conduct while being aware of the possibility of evading the investigation and trial.
Active assistance in the detection of a criminal offense, exposure of other accomplices to the criminal offense and tracing of property obtained as a result of the criminal offense is recognized as a mitigating circumstance when the person provides such assistance actively and voluntarily, rather than under pressure from evidence.
The list of mitigating circumstances provided above is not exhaustive; therefore, pursuant to part 2 of Article 53 of the Criminal Code, circumstances not provided for in part 1 of this Article may also be taken into account as mitigating circumstances when imposing a sentence.
In certain provisions of the Special Part, mitigating circumstances are specified as independent elements; in such cases, they are not taken into account again when imposing a sentence. For example, the mitigating circumstances specified in paragraph 9) of part 1 of Article 53 of the Criminal Code are not taken into account in cases of murder committed in excess of the limits of necessary defense (Article 102 of the Criminal Code); murder committed in excess of the measures necessary to detain the guilty person (Article 103 of the Criminal Code); infliction of grievous bodily harm in excess of the limits of necessary defense (Article 112 of the Criminal Code), etc. This follows from part 3 of Article 53 of the Criminal Code, which states: “If a mitigating circumstance is provided for in the relevant article of the Special Part of this Code as an element of a criminal offense, it may not, in itself, be taken into account again when imposing a sentence.”
Thus, the existence of the circumstances specified in Article 53 of the Criminal Code indicates a lower degree of public danger posed by the guilty person and the criminal offense committed by them, which grants the right to mitigate the punishment imposed on the person within the limits of the sanction of the article under which the socially dangerous act is classified.
Commentary of 2021 on the Criminal Code of the Republic of Kazakhstan 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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