Commentary on Article 54 of the Criminal Code of the Republic of Kazakhstan. Circumstances Aggravating Criminal Liability and Punishment

1. Circumstances aggravating criminal liability and punishment shall be deemed to include:

1) repeated criminal offenses, recidivism of crimes, and dangerous recidivism of crimes;

2) causing grave consequences by a criminal offense;

3) commission of a criminal offense by a group of persons, a group of persons by prior conspiracy, or a criminal group;

4) an especially active role in the commission of a criminal offense;

5) involving in the commission of a criminal offense persons who, as is knowingly known to the perpetrator, suffer from a severe mental or behavioral disorder (illness), or persons who have not attained the age at which criminal liability arises;

6) commission of a criminal offense motivated by national, racial or religious hatred or enmity, out of revenge for the lawful actions of other persons, or for the purpose of concealing another criminal offense or facilitating its commission;

7) commission of a criminal offense against a woman who is knowingly known to the perpetrator to be pregnant, as well as against a minor child, another defenseless or helpless person, or a person dependent on the perpetrator;

8) commission of a criminal offense against a person or that person's close associates in connection with the performance by that person of their official, professional or public duty;

9) commission of a criminal offense with particular cruelty, sadism, humiliation, or the infliction of suffering upon the victim;

10) commission of a criminal offense using weapons, ammunition, explosives, explosive devices or devices imitating them, specially manufactured technical means, flammable and combustible liquids, poisonous and radioactive substances, medicinal and other chemical-pharmacological preparations, as well as through the use of physical or psychological coercion or by a generally dangerous method;

11) commission of a criminal offense under a state of emergency, an emergency situation, or during mass riots;

12) commission of a criminal offense while under the influence of alcohol, narcotic drugs or toxic substances. Depending on the nature of the criminal offense, the court may decline to recognize this circumstance as aggravating;

13) commission of a criminal offense by a person who thereby violated an oath or professional pledge taken by that person;

14) commission of a criminal offense by exploiting the trust placed in the perpetrator by virtue of their official position or a contract;

15) commission of a criminal offense using a uniform or documents of a representative of authority;

16) commission of a criminal offense by an employee of a law enforcement or special state body, or by a judge, through the use of their official position.

2. If a circumstance specified in part one of this Article is provided for in the relevant article of the Special Part of this Code as an element of a criminal offense, it may not be taken into account again as a circumstance aggravating criminal liability and punishment.

3. When imposing punishment, the court may not recognize as aggravating circumstances those not specified in part one of this Article.

The establishment of circumstances aggravating criminal liability and punishment indicates the increased public danger of the criminal offense committed and of the person who committed it, thereby enabling the court to impose a more severe type and degree of punishment within the limits of the sanction of the Article under which the act is classified.

Paragraph 2 of clause 5 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan “On Certain Issues of Sentencing” states that: “When imposing punishment, the court must indicate in the judgment, in respect of each defendant, the circumstances mitigating and aggravating their criminal liability and punishment.”

Repeated Criminal Offenses, Recidivism of Crimes, and Dangerous Recidivism of Crimes

The repeated commission of a criminal offense indicates the persistence of the offender's antisocial views and their increased public danger. In this regard, the danger lies in the fact that the person is unwilling to embark on the path of rehabilitation and, after committing one offense, commits another criminal offense.

In accordance with part 1 of Article 12 of the Criminal Code, repeated criminal offenses consist of the commission of two or more acts provided for by the same Article or the same part of an Article of the Special Part of the Criminal Code of the Republic of Kazakhstan (see the commentary to Article 12 of the Criminal Code).

In certain provisions of the Special Part of the Criminal Code establishing liability for intentional criminal offenses, repetition is recognized as a qualifying or especially qualifying element. The existence of repeated criminal offenses as a circumstance aggravating criminal liability and punishment, provided for in subparagraph 1) of part 1 of Article 54 of the Criminal Code, is determined in accordance with the concept of repetition established in part 1 of Article 12 of the Criminal Code. A person found guilty by a court judgment of committing two or more crimes (whether through repetition or an actual aggregate of crimes) may not be recognized as a person who has committed a crime for the first time.

Recidivism of crimes represents an increased degree of public danger, since it indicates that the person has not reformed and has once again embarked on the path of committing crimes. In accordance with Article 14 of the Criminal Code, simple recidivism and dangerous recidivism are distinguished (see the commentary to Article 14 of the Criminal Code).

Recidivism of crimes may be recognized as an aggravating circumstance when imposing punishment only if the person had an unexpunged or outstanding criminal record and subsequently committed another crime that served as the basis for recognizing any form of recidivism. This is indicated by part 3 of Article 14 of the Criminal Code and 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” (see the commentary to Article 14 of the Criminal Code).

Recidivism of crimes and dangerous recidivism of crimes entail the imposition of a more severe punishment on the grounds and within the limits provided for in part 4 of Article 14 of the Criminal Code, the procedure for which is established by Article 59 of the Criminal Code.

The commission of a criminal offense by a person who has previously committed any criminal offense may not be regarded as a circumstance aggravating criminal liability and punishment if the limitation period for criminal prosecution in respect of the first criminal offense has expired, the criminal record has been expunged or canceled in accordance with the procedure established by law, or the criminality of the act previously committed has been eliminated by law, as well as in cases where the person was released from criminal liability and punishment on the grounds provided for in the General Part of the Criminal Code of the Republic of Kazakhstan (clause 5 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan “On Certain Issues of Sentencing”).

Causing Grave Consequences by a Criminal Offense

Grave consequences may arise from both intentional crimes and crimes committed through negligence; therefore, regardless of the form of guilt, this circumstance may be recognized as aggravating. To this end, the court must establish a causal relationship between the act committed and the consequences that ensued.

The severity of the consequences significantly affects the assessment of the degree of public danger of the act: the more serious the consequences, the greater the danger the act poses to society. A consequence may be recognized as grave both when it is covered by the elements of the crime and when it extends beyond those elements. If the consequence forms part of the crime, it shall be recognized as grave only in cases where its actual extent significantly exceeds the minimum amount of damage necessary and sufficient to classify the act under the relevant Article of the Special Part of the Criminal Code.

Grave consequences may include not only consequences directly caused by the criminal act, but also more remote consequences, provided that they are causally connected with the person's actions. For example, the death of a newborn child left without food and supervision must be regarded as a grave consequence when convicting a person for the murder of a newborn child by its mother (Article 100 of the Criminal Code).

The concept of grave consequences is provided in subparagraph 4) of Article 3 of the Criminal Code (see the commentary to Article 3 of the Criminal Code).

Commission of a Criminal Offense by a Group of Persons, a Group of Persons by Prior Conspiracy, or a Criminal Group

Punishment imposed on members of criminal groups shall be individualized in accordance with their criminal role and degree of participation in the group.

A person who has created a criminal group or led it shall be held criminally liable for organizing the criminal group and directing it in cases provided for by the relevant Articles of the Special Part, as well as for all criminal offenses committed by the criminal group, provided that they were covered by that person's intent (part 4 of Article 31 of the Criminal Code). Other members of the criminal group shall be held criminally liable for participating in it in cases provided for by the relevant Articles of the Special Part, as well as for the crimes in the preparation or commission of which they participated (part 5 of Article 31 of the Criminal Code).

In many Articles of the Special Part of the Criminal Code, particularly those establishing liability for intentional crimes, commission by a group of persons, prior conspiracy, and a criminal group are recognized as qualifying and especially qualifying elements of a crime. At the same time, the dispositions of certain elements of crimes provided for in the Special Part of the Criminal Code of the Republic of Kazakhstan do not contain the above circumstances as elements of the crime; therefore, they may be recognized as aggravating circumstances (Article 105 of the Criminal Code, “Incitement to Suicide”; Article 110 of the Criminal Code, “Torture”; Article 123 of the Criminal Code, “Compulsion to Sexual Intercourse, Male Homosexual Intercourse, Lesbianism or Other Acts of a Sexual Nature”; Article 124 of the Criminal Code, “Corruption of Minors Under the Age of Sixteen”).

An Especially Active Role in the Commission of a Criminal Offense

This aggravating circumstance may arise only in cases where the criminal offense has been committed through complicity. The degree of activity of one or another accomplice (organizer, perpetrator, aider or instigator) shall be established in each specific case, taking into account all the circumstances of the case. However, the law refers not merely to an active role, but to an especially active role in the commission of a criminal offense. The role of each participant in a criminal offense must be established both when examining the circumstances of the act itself and when examining the personality of the individual concerned. The especially active role of the perpetrator may manifest itself and be recognized as such at any stage of the commission of the offense (during preparation, attempted commission, or commission of a completed criminal offense).

Paragraph 19 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated June 21, 2001, “On Certain Issues of the Application by Courts of Legislation on Liability for Banditry and Other Criminal Offenses Committed Through Complicity,” also states that: “Courts should carefully establish and take into account all the circumstances of the case and information concerning the personalities of the defendants, their roles and degrees of participation in the organization and activities of the criminal group, the severity of the consequences resulting from their actions, and other circumstances relevant to the imposition of punishment.”

Involving in the Commission of a Criminal Offense Persons Who, as Is Knowingly Known to the Perpetrator, Suffer from a Severe Mental Disorder, or Persons Who Have Not Attained the Age at Which Criminal Liability Arises

This aggravating circumstance is обусловлено by the fact that the perpetrator knowingly and intentionally involves in the commission of criminal offenses persons who, due to a severe mental disorder or failure to attain the age at which criminal liability arises, are unable to understand the nature and significance of the actions being committed. This constitutes a factor that increases public danger and affects the punishment.

Part 2 of Article 28 of the Criminal Code states that a perpetrator shall be recognized as a person who directly commits a criminal offense or directly participates in its commission jointly with other persons (co-perpetrators), as well as a person who commits a criminal offense by using other persons who are not subject to criminal liability due to their age, insanity or other circumstances provided for by the Criminal Code, as well as persons who have committed an act through negligence.

Paragraph 27 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,” also emphasizes that the actions of an adult who has involved a minor in the commission of a criminal offense and participated in it shall be classified under the aggregate of Articles of the Criminal Code providing for liability both for committing a specific criminal offense in complicity with the adolescent and for involving the minor in the commission of criminal offenses. In this regard, a criminal offense committed jointly with a person who has not attained the age at which criminal liability arises may not be classified as having been committed by a group of persons. In such situations, in accordance with part 2 of Article 28 of the Criminal Code, the adult who involved the minor in the commission of criminal offenses shall be recognized as the perpetrator of the criminal offense.

Commission of a Criminal Offense Motivated by National, Racial or Religious Hatred or Enmity, Out of Revenge for the Lawful Actions of Other Persons, or for the Purpose of Concealing Another Criminal Offense or Facilitating Its Commission

Article 14 of the Constitution of the Republic of Kazakhstan establishes the principle of equality of all persons before the law and the courts, according to which no one may be subjected to any discrimination on the grounds of origin, social, official or property status, sex, race, nationality, language, attitude toward religion, beliefs, place of residence or any other circumstances. A similar provision is contained in part 4 of Article 15 of the Criminal Code.

Moreover, the Criminal Code of the Republic of Kazakhstan provides for liability for violating the equality of human beings and citizens (Article 145 of the Criminal Code), and in certain elements of crimes, the commission of an act motivated by social, national, racial or religious hatred or enmity is provided for as an aggravating circumstance (subparagraph 11) of part 2 of Article 99, subparagraph 8) of part 2 of Article 106, subparagraph 6) of part 2 of Article 107 of the Criminal Code, and others). A number of violations of equality are provided for as qualifying elements of criminal offenses: subparagraph 2) of part 2 of Article 293 of the Criminal Code — hooliganism; part 2 of Article 410 of the Criminal Code — insulting a judge and/or juror; Article 411 of the Criminal Code — defamation of a judge and/or juror, prosecutor, person conducting pre-trial investigation, expert, court bailiff, enforcement officer, and others.

The commission of a criminal offense as retribution for any lawful actions of other persons shall be recognized as an aggravating circumstance.

The commission of a criminal offense for the purpose of concealing another criminal offense or facilitating its commission indicates an increased degree of public danger posed by the person, since such actions, on the one hand, impede the detection of the criminal offense and identification of the perpetrator and, on the other hand, facilitate its commission.

Commission of a Criminal Offense Against a Woman Who Is Knowingly Known to the Perpetrator to Be Pregnant, as Well as Against a Minor Child, Another Defenseless or Helpless Person, or a Person Dependent on the Perpetrator

The law recognizes the commission of a criminal offense against a woman who is knowingly known to the perpetrator to be pregnant as an aggravating circumstance of criminal liability. The personality of a pregnant woman, given her condition as a person preparing to give life to another human being, requires special care for her health and the physical and mental well-being of her offspring. If a person, being fully aware of her condition, commits a criminal offense against her, this increases the public danger posed by that person.

It should be noted that a crime against a woman who is knowingly known to the perpetrator to be pregnant is provided for in certain Articles of the Special Part of the Criminal Code as an aggravating circumstance (subparagraph 4) of part 2 of Article 99, subparagraph 7) of part 2 of Article 116 of the Criminal Code, and others).

According to part 3 of Article 99 of the Criminal Code, the murder of a minor child is classified as an especially grave crime with an absolutely determinate sanction — 20 years of imprisonment with lifelong deprivation of the right to hold certain positions or engage in certain activities, or life imprisonment, with or without confiscation of property.

The concept of minors is explained in the commentary to subparagraph 4) of part 1 of Article 53 of the Criminal Code.

In certain Articles, the legislator has specified “helpless condition” and “dependence on the perpetrator” as aggravating circumstances (subparagraph 3) of part 2 of Article 99, subparagraph 1) of part 2 of Article 105, subparagraph 1) of part 2 of Article 110 of the Criminal Code, and others). A person who is defenseless, helpless or dependent on the perpetrator may be not only a seriously ill person, but also any other person who, due to objective or subjective circumstances (disability, sleep, intoxication, etc.), is unable to offer physical or psychological resistance to the offender.

Commission of a Criminal Offense Against a Person or That Person's Close Associates in Connection with the Performance by That Person of Their Official, Professional or Public Duty

The commission of a criminal offense for the above-mentioned motive indicates an increased degree of public danger of the offense and of the perpetrator's personality, since by doing so the offender obstructs normal official, public or professional activities and seeks to terminate or alter them in their own interests. Thus, for example, subparagraph 2) of part 2 of Article 99 of the Criminal Code provides for increased criminal liability for the murder of a person or that person's close associates in connection with that person's official activities or performance of professional or public duty (see also subparagraph 2) of part 2 of Article 106, subparagraph 2) of part 2 of Article 107 of the Criminal Code, and others).

There shall be no aggravating circumstance if the criminal offense is committed not in connection with the performance of official, professional or public duty, but on the basis of personal hostility: revenge, jealousy, etc.

The Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated May 11, 2007, “On the Classification of Certain Crimes Against Human Life and Health,” states that:

the performance of official activities shall mean activities falling within the scope of a person's official duties;

the performance of professional duty shall mean the commission by a person of actions related to a particular profession (for example, an artist creating sketches, portraits or caricatures);

the performance of public duty shall mean the exercise by any citizens of both specially assigned public responsibilities and any other actions undertaken in the interests of society or individuals (for example, preventing offenses, reporting a planned or committed criminal offense, giving witness testimony, etc.).

Paragraph 11) of Article 7 of the Criminal Procedure Code provides a definition of the concept of “close relatives,” according to which they include parents, children, adoptive parents, adopted children, full and half brothers and sisters, grandfather, grandmother and grandchildren.

The Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan “On the Classification of Certain Crimes Against Human Life and Health” notes that the term “close associates” includes not only close relatives specified in subparagraph 11) of Article 7 of the Criminal Procedure Code, but also other persons whom the individual performing official activities or professional or public duty holds dear. In each case, it is necessary to establish that the perpetrator was knowingly aware of their close relationship.

Commission of a Criminal Offense with Particular Cruelty, Sadism, Humiliation, or the Infliction of Suffering Upon the Victim

Cruelty may be relevant in relation to criminal offenses against the person (murder, causing bodily harm), as well as other criminal offenses.

Paragraph 10 of the above-mentioned Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan states that the element of particular cruelty exists, in particular, in cases where torture, torment or humiliation was inflicted upon the victim before or during the commission of the crime, as well as in other circumstances (murdering parents in front of their children or children in front of their parents, desecration of a corpse, etc.).

Sadism means a desire for cruelty, deriving pleasure from the suffering of others, and distorted and elaborate cruelty.

Humiliation of the victim occurs where the perpetrator's actions are committed in a gross and cynical manner and are specifically directed at degrading human dignity and causing physical and moral suffering to the victim. Humiliation may occur not only in relation to criminal offenses against the person, but also in relation to other criminal offenses (for example, offenses against the constitutional and other rights and freedoms of individuals and citizens).

The infliction of suffering upon the victim means causing physical or moral suffering (for example, beating the victim or inflicting numerous wounds before death, torturing the victim over a prolonged period, using an especially painful poison, burning a person alive, leaving a person in freezing conditions without warm clothing, depriving a person of food and water for a prolonged period with the purpose of causing their death, etc.).

In certain Articles of the Special Part of the Criminal Code, the commission of a crime with particular cruelty is recognized as a qualified form of murder (subparagraph 5) of part 2 of Article 109 of the Criminal Code, subparagraph 4) of part 2 of Article 106 of the Criminal Code, and others).

Commission of a Criminal Offense Using Weapons, Ammunition, Explosives, Explosive Devices or Devices Imitating Them, Specially Manufactured Technical Means, Flammable and Combustible Liquids, Poisonous and Radioactive Substances, Medicinal and Other Chemical-Pharmacological Preparations, as Well as Through the Use of Physical or Psychological Coercion or by a Generally Dangerous Method

The use of explosives or devices imitating them, as well as preparations, in the commission of a criminal offense creates a threat to human life and health due to their inherent properties and may cause grave consequences.

In certain Articles of the Special Part of the Criminal Code, the commission of a criminal offense using weapons is provided for as a qualifying element (for example, robbery under subparagraph 4) of part 2 of Article 192 of the Criminal Code).

The use of physical or psychological violence in the commission of a crime facilitates the commission of a criminal offense and also increases the danger posed by the offender. The commission of a criminal offense by a generally dangerous method means the use of methods of committing a criminal offense that are capable of causing significant damage to an indefinite number of people or property (explosions, arson, poisoning, shooting in crowded places, etc.). These circumstances are provided for as qualifying elements in certain Articles of the Special Part of the Criminal Code (for example, subparagraph 6) of part 2 of Article 99 of the Criminal Code, subparagraph 3) of part 2 of Article 128 of the Criminal Code, and others).

It should also be taken into account that physical or psychological coercion is provided for in Article 37 of the Criminal Code as a circumstance excluding the criminality of an act.

Commission of a Criminal Offense Under a State of Emergency, an Emergency Situation, or During Mass Riots

According to subparagraph 5) of Article 1 of the Law of the Republic of Kazakhstan dated February 8, 2003, “On the State of Emergency,” a state of emergency is a temporary measure applied exclusively in the interests of ensuring the safety of citizens and protecting the constitutional order of the Republic of Kazakhstan, representing a special legal regime governing the activities of state bodies and organizations, permitting the imposition of certain restrictions on the rights and freedoms of citizens, foreigners and stateless persons, as well as the rights of legal entities, and imposing additional obligations on them.

According to subparagraph 66) of Article 1 of the Law of the Republic of Kazakhstan dated April 11, 2014, “On Civil Protection,” an emergency situation is a situation arising in a particular territory as a result of an accident, fire, harmful effects of hazardous industrial factors, a dangerous natural phenomenon, catastrophe, natural disaster or other calamity, which may result or has resulted in human casualties, harm to human health or the environment, significant material damage, and disruption of people's living conditions.

According to part 1 of Article 272 of the Criminal Code, mass riots are actions accompanied by violence, pogroms, arson, destruction, damage to property, the use of firearms, explosives or explosive devices, as well as armed resistance to a representative of authority.

In certain Articles of the Special Part of the Criminal Code, the commission of a crime during an emergency situation or during mass riots is provided for by the legislator as an aggravating circumstance (subparagraph 15) of part 2 of Article 99 of the Criminal Code).

Commission of a Criminal Offense While Under the Influence of Alcohol, Narcotic Drugs or Toxic Substances

Depending on the nature of the criminal offense, the court may decline to recognize this circumstance as aggravating.

The state of intoxication caused by the consumption of alcoholic beverages, narcotic drugs and toxic substances is often a cause of criminal offenses and is regarded as a circumstance indicating an increased degree of public danger of the criminal offense committed and of the person who committed it.

Paragraph 4 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan “On Certain Issues of Sentencing” states: “In accordance with subparagraph 12) of part one of Article 54 of the Criminal Code, depending on the nature of the criminal offense, the court may decline to recognize the commission of a crime while intoxicated as a circumstance aggravating criminal liability and punishment. When deciding this issue, courts must take into account whether the commission of the criminal act was, by its nature, related to the perpetrator's state of intoxication, as well as the circumstances under which the person entered that state. In particular, the state of intoxication of a minor at the time of committing a criminal offense shall not be taken into account as an aggravating circumstance of criminal liability and punishment if it is connected with the involvement of that minor by an adult.”

According to paragraph 1 of Article 23 of the Constitutional Law of the Republic of Kazakhstan dated December 25, 2000, “On the Judicial System and Status of Judges of the Republic of Kazakhstan,” a judge is a state official vested, in accordance with the procedure established by the Constitution of the Republic of Kazakhstan and the Constitutional Law “On the Judicial System and Status of Judges of the Republic of Kazakhstan,” with the authority to administer justice, performing their duties on a permanent basis and being a bearer of judicial power.

The use by a person of their official position shall mean the use of the functions, rights and duties vested in that person by virtue of holding a position within a state body, commercial organization or other organization.

The aggravating circumstances specified in part 1 of Article 54 of the Criminal Code shall not be taken into account as circumstances aggravating criminal liability and punishment if they are provided for in the relevant Article or part of an Article of the Special Part of the Criminal Code. Otherwise, the same circumstance would be taken into account twice: first, when classifying the criminal offense, which determines the limits of the punishment to be imposed, and then directly when imposing the punishment.

This is also indicated by the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan “On Certain Issues of Sentencing”: paragraph 4 states that the list of circumstances aggravating criminal liability and punishment specified in part 1 of Article 54 of the Criminal Code is exhaustive. Accordingly, other circumstances established by the court under which the criminal offense was committed or which characterize the defendant (abuse of alcoholic beverages, violation of rules of conduct in public places, attitude toward family, work, studies, etc.) may be taken into account when imposing punishment, but may not be recognized as circumstances aggravating criminal liability and punishment.

Commentary on the Criminal Code of the Republic of Kazakhstan, 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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