Commentary on Article 99. Murder of the Criminal Code of the Republic of Kazakhstan

1. Murder, that is, the unlawful intentional causing of the death of another person,

shall be punishable by imprisonment for a term of eight to fifteen years.

2. Murder:

1) of two or more persons;

2) of a person or their close associates in connection with the performance of official duties or the fulfilment of professional or public duties by that person;

3) of a person who is known to the perpetrator to be in a helpless state, as well as murder associated with the kidnapping of a person or the taking of a hostage;

4) of a woman who is known to the perpetrator to be pregnant;

5) committed with particular cruelty;

6) committed by a method dangerous to the lives of other people;

7) committed by a group of persons or by a group of persons acting upon prior conspiracy;

8) for mercenary motives, as well as for hire or in conjunction with robbery or extortion;

9) for hooligan motives;

10) committed for the purpose of concealing another crime or facilitating its commission, as well as murder associated with rape or violent acts of a sexual nature;

11) motivated by social, national, racial or religious hatred or enmity, or by blood feud;

12) committed for the purpose of using the organs or tissues of the victim;

13) committed repeatedly;

14) of a person who is knowingly a minor;

15) committed by a criminal group, as well as under conditions of an emergency situation or during mass riots,

shall be punishable by imprisonment for a term of fifteen to twenty years or life imprisonment, with or without confiscation of property.

3. Murder of a young child

shall be punishable by imprisonment for a term of twenty years, with lifelong deprivation of the right to hold certain positions or engage in certain activities, or by life imprisonment, with or without confiscation of property.

The Constitution of the Republic of Kazakhstan proclaims that the highest value of the State is the human being and their life (Article 1). Everyone has the right to life, and no one may arbitrarily deprive a person of life (Article 15). In order to implement these constitutional provisions, Chapter 1 of the Special Part of the Criminal Code of the Republic of Kazakhstan establishes liability for criminal offences against the person, beginning with Article 99 of the Criminal Code, which provides for liability for murder.

The public danger of murder lies in the fact that the commission of this particularly grave crime violates a person's constitutional right — the right to life, irrespective of their citizenship, nationality or race, origin and age, social status, occupation, state of health or education, or intelligence. Human life is the most important natural social value, which belongs to every person from birth.

The object of murder is human life. Human life is a combination of biological and social factors that make it possible for a person to exist in nature and in a society of other human beings.

Life, as the object of a crime, is not subject to qualitative or quantitative assessment. Equal protection of all people against criminal encroachments upon their lives is a fundamental principle of criminal law. The victim's age, state of health or “social dependence” is irrelevant. The criminal legislation of the Republic of Kazakhstan does not permit the taking of the life of even a terminally ill person, even with that person's consent or request (euthanasia). It is precisely the equal value of the object of the crime that explains why causing the death of a person mistakenly identified as someone else is not regarded as an “error in the object” and does not affect the classification of the act as a completed murder. The establishment of increased liability for the murder of certain categories of persons in special provisions (Part 4 of Article 255, Articles 380-1 and 405 of the Criminal Code) is associated not with the special value of the victim's life, but with the simultaneous presence of another object of encroachment or additional consequences aggravating the guilt.

In order to determine whether an object of an encroachment upon life exists or is absent, it is necessary to establish its beginning and end. In the criminal-law sense, life exists when a person has been born and has not yet died. It is impossible to deprive of life a person who has not yet been born or who has already died.

There is considerable divergence of opinion among scholars regarding the point at which human life begins. Various criminal-law and forensic medical doctrines contain different views on the initial moment of human life. Thus, the beginning of human life was recognised in the past and is recognised at present as:

the independent life of a human being outside the mother's body after the complete separation of the infant from the womb;

the separation of the body from the mother's womb and the beginning of breathing;

the emergence of the child being born from the mother's womb, even if the child has not yet begun an independent extrauterine life;

the emergence of any part of the child's body from the mother's womb.

It can be confidently concluded that human life begins from the moment the process of birth commences. At the same time, the initial moment of the birth process itself, sufficient to establish the beginning of the child's life, should be considered the crowning of the infant's head as it emerges from the mother's body. The separation of the child from the mother's body and the transition to independent breathing already fall outside the initial moment of human life. Furthermore, the wording of Article 100 of the Criminal Code states: “The murder by a mother of her newborn child, both during childbirth and during the subsequent period...”. It follows from the text of the Article that it refers to “the murder of a newborn child during childbirth”. Thus, the legislator emphasises that the status of “newborn” is acquired by the child not at the moment childbirth ends, but at the moment it begins. Such an interpretation of the beginning of human life is consistent with modern humanistic trends in the development of Kazakhstan's criminal-law policy.

Moreover, shifting the emphasis in determining the relevant moment to the initial stage of the birth process may also serve as a factor intended to prevent certain types of crimes against life.

The intentional killing of a foetus before the onset of physiological labour should be regarded as a criminal abortion (Article 319 of the Criminal Code).

The moment of a person's death is the moment of biological death. In accordance with Article 153 of the Code of the Republic of Kazakhstan dated 7 July 2020, “On Public Health and the Healthcare System”, biological death is the cessation of the vital functions of an organism, in which its vital functions have irreversibly ceased.

In contrast to biological death, there is the concept of “clinical death”, which is characterised by the cessation of the heart's activity. Modern medicine has developed to such an extent that the heart can be revived even several hours after it has stopped, not to mention the transplantation of another person's heart. In such cases, life may still be restored through resuscitation measures.

The cerebral cortex dies within 4–7 minutes after cardiac arrest, and the person cannot be resuscitated, that is, irreversible death of the brain occurs. In accordance with the Code of the Republic of Kazakhstan “On Public Health and the Healthcare System”, irreversible death of the brain is the complete loss of the integrated function of brain cells, accompanied by the death of all brain tissue.

Causing clinical death in a person whose heart activity is subsequently restored is classified as attempted murder (Part 3 of Article 24 and Article 99 of the Criminal Code). In turn, an encroachment upon the life of a person who is in a state of clinical death may be recognised as murder.

According to subparagraph 294) of paragraph 1 of Article 1 of the Code of the Republic of Kazakhstan “On Public Health and the Healthcare System”, euthanasia is the granting of a request to hasten the death of a terminally ill patient by any actions or means, including the administration of medicinal or other substances, as well as the discontinuation of artificial measures to sustain life in cases of an unfavourable outcome of the disease. The practice of euthanasia is prohibited (Article 154 of the aforementioned Code). Accordingly, euthanasia is equated with murder.

It should be noted that criminal law equally protects the life of every person. Therefore, in certain cases, the identity of the victim is of considerable importance for classification, particularly in relation to qualified types of murder (subparagraph 2) of Part 2 of Article 99 of the Criminal Code).

In certain situations, it is not so much the identity of the victim as their conduct prior to the crime that affects the classification, for example, murder committed in a state of passion (Article 101 of the Criminal Code), murder committed by exceeding the limits of necessary defence, and murder committed by exceeding the measures necessary to detain a person who has committed a crime (Articles 102 and 103 of the Criminal Code).

The objective element of murder is expressed in an act in the form of action or omission, a consequence in the form of death, and a causal relationship between them. As a rule, murder is committed through active physical actions that violate the anatomical integrity of human organs and/or tissues. In a situation where the intent to murder arises in the perpetrator directly during the commission of another crime against the victim's health, and thus a crime initially commenced as a less serious one develops into a more serious one, all the conduct is covered by the elements of murder and does not require additional classification under the Article establishing liability for a crime against health. Likewise, the act does not require additional classification if, in the course of depriving the victim of life, a method involving the infliction of bodily harm is used.

Murder may be committed through informational influence (for example, the intentional provocation of a heart attack in a victim by communicating unpleasant news to them, resulting in death, should be classified as murder).

Murder by omission may occur only in cases where the perpetrator was under an obligation to care for the victim and where they were required and able to perform certain actions aimed at preventing death. Liability for murder by omission arises only where both objective and subjective prerequisites are present: duties specifically imposed on the person by law, profession or contract to protect life, and the person's actual ability to prevent death. For example, a mother, with the intention of killing her newborn child, does not feed the child; a medical worker, with the intention of causing a patient's death, fails to provide the patient with medical assistance.

It should be noted that the issue of criminal omission was first raised by the renowned nineteenth-century jurist Anselm von Feuerbach. It was precisely with Feuerbach that the systematic development of the issue of omission as a form of crime distinct from action began. An omission can be attributed to a person only when they were required to perform certain actions. If a person could have performed those actions but was not required to do so, there is no omission. Furthermore, the person must have had a real opportunity to perform the relevant actions. If the person was required to perform them but was unable to do so, there is likewise no omission.

The methods of committing murder are diverse: firing a shot, inflicting wounds with various objects, administering poison, and so forth. The use of certain methods is regarded as a qualified type of murder. For example, murder committed with particular cruelty (subparagraph 5) of Part 2 of Article 99 of the Criminal Code); murder committed by a method dangerous to the lives of other people (subparagraph 6) of Part 2 of Article 99 of the Criminal Code).

The socially dangerous consequence — the death of the victim — is a mandatory element of the objective side of murder. Without the death of a person occurring, this crime cannot be recognised as completed.

An essential element of the objective side of murder is the existence of a causal relationship between the perpetrator's conduct and the victim's death. Therefore, liability for murder is excluded if there is no causal relationship between the perpetrator's conduct and the death that occurred (for example, if, during a fight, the perpetrator inflicted serious injuries on the victim, but the victim died as a result of striking their head against the ground when falling).

The infliction of injuries to vital organs of the body which, as a rule, lead to the victim's death, but which in a particular case did not result in death due to a fortuitous combination of circumstances beyond the perpetrator's control, must be classified as attempted murder. At the same time, attempted murder is possible only with direct intent, that is, where the conduct demonstrated that the perpetrator was aware of the socially dangerous nature of their actions (or omissions), foresaw the possibility or inevitability of another person's death and desired that death occur, but the fatal outcome did not occur due to circumstances beyond their control (owing to the intervention of other persons, the timely provision of medical assistance to the victim, and so forth).

Murder is recognised as completed from the moment the victim dies. It is irrelevant when death occurs: immediately or some time later. The Criminal Code of the Republic of Kazakhstan does not establish any “critical time limits” for the occurrence of death where the perpetrator had the intent to commit murder.

The subjective element of murder is characterised by an intentional form of guilt. A person is aware that they are committing an act that will result in the death of another person, actually foresees the possibility or inevitability of this consequence and desires its occurrence — direct intent; or consciously allows death to occur or is indifferent to the occurrence of such a consequence — indirect intent.

In its Regulatory Resolution dated 11 May 2007, “On the Classification of Certain Criminal Offences Against Human Life and Health”, the Supreme Court of the Republic of Kazakhstan draws attention to the fact that, in order to ensure the proper application of criminal law when classifying criminal offences against life and health and imposing a fair punishment, it is necessary to establish the form of guilt, the type of intent, the motives and purpose, the method, the circumstances and the stage of commission of the criminal offence, as well as the severity of the consequences. The bodies conducting criminal proceedings must substantiate their conclusions in procedural documents (the indictment and the judgment) by citing admissible, relevant and reliable evidence.

Murder is also committed with direct intent not only when causing death is the ultimate objective of the perpetrator's actions, but also when the objective lies outside the elements of murder, for example, the murder of an accidental eyewitness to a crime (the objective being to avoid exposure) or the murder of a cashier who refused to hand over money to the criminal (the objective being to obtain possession of the money). In these cases as well, the desire to cause death, as the volitional element of intent, is present.

From the subjective perspective, attempted intentional murder is characterised exclusively by direct intent, where, while committing intentional acts, the perpetrator was aware of their socially dangerous nature, acted with the purpose of causing the victim's death, foresaw its occurrence and desired it, but death did not occur due to circumstances beyond their control. In this regard, it is necessary to determine and establish whether the perpetrator acted with the intent to cause the victim's death, whether they desired precisely that result, what circumstances prevented the person's death, and whether those circumstances depended on the perpetrator's will.

Paragraph 4 of the aforementioned Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan states:

“Completed criminal offences against human life and health may be committed with either direct or indirect intent, whereas attempts to commit them are characterised, from the subjective perspective, only by direct intent. Therefore, alongside determining the stage of commission of a criminal offence, it is necessary to take into account the form of guilt, to ascertain and establish what the perpetrator's intent was directed at, what consequences resulted from the criminal offence, and the perpetrator's subjective attitude towards the occurrence of precisely that result. If the criminal offence was interrupted before its completion, it is necessary to establish why the perpetrator ceased their actions, whether this depended on their will, whether they had a real opportunity to continue committing the criminal offence, and what circumstances prevented the socially dangerous consequences from occurring.

In this regard, an attempt to commit murder under Article 99 of the Criminal Code should be understood as intentional actions in which the perpetrator was aware of their socially dangerous nature, acted with the purpose of unlawfully causing the victim's death, foresaw its occurrence and desired it, but death did not occur due to circumstances beyond their control.”

For the classification of murder, the moment at which the intent was formed is also irrelevant. Murder committed with a premeditated intention is not regarded by criminal law as a more serious type of murder. The degree of public danger depends to a greater extent on the motive, purpose, method of murder and other circumstances that the law recognises as qualifying factors.

The motives and purpose of the perpetrator's actions in murder may vary in nature and may affect the classification of the act or be taken into account when imposing punishment (for example, murder for hooligan or mercenary motives, and so forth).

In judicial and investigative practice, murder classified under Part 1 of Article 99 of the Criminal Code generally includes murder motivated by revenge, jealousy, personal hostility, a quarrel or a fight (in the absence of hooligan motives), compassion, the victim's request, and similar cases in which there are no aggravating or mitigating circumstances.

Murder motivated by revenge. This crime is classified under Part 1 of Article 99 of the Criminal Code if the revenge arises from personal hostility between the perpetrator and the victim, and the murder itself is not accompanied by any aggravating circumstances provided for in Part 2 of Article 99 of the Criminal Code.

Revenge is “the intentional infliction of harm or trouble for the purpose of repaying an insult, offence or suffering” (Explanatory Dictionary of the Russian Language / edited by D. N. Ushakov. Vol. 2. Moscow, 1938. pp. 193–194).

The motive of revenge consists in the desire to retaliate and harm the victim for the harm caused to the perpetrator. Murder motivated by revenge is characterised by a motive of retribution for certain actions of a specific person and a desire to obtain satisfaction for actions that have substantially affected the interests of the perpetrator or their close associates.

Murder motivated by jealousy. Jealousy is “passionate distrust, painful doubt about someone's faithfulness, love or complete devotion” (according to the definition in the Explanatory Dictionary of the Russian Language). Jealousy, as a motive for murder, does not in itself indicate the exceptional public danger of the crime committed or of the perpetrator's personality.

For the classification of murder as motivated by jealousy, it is irrelevant against whom the perpetrator's jealousy was directed. In such a situation, the victim may be either the person suspected of infidelity or other persons whose behaviour causes the perpetrator to feel jealous. It is irrelevant whether the jealousy was justified or imaginary, whether the victim actually gave any grounds for jealousy, or whether the jealousy arose as a result of the person's suspiciousness or false information.

Murder motivated by jealousy should be distinguished from murder committed for hooligan motives. Under certain circumstances, the motive of jealousy may be intertwined with such motives. Where jealousy serves merely as a pretext for the implementation of the dominant hooligan motive in such a combination, liability arises under subparagraph 9) of Part 2 of Article 99 of the Criminal Code. In such cases, it is necessary to carefully establish which motive — jealousy or hooligan motives — was dominant and determined the perpetrator's conduct in committing the murder.

Murder motivated by jealousy may also be committed in a state of intense emotional disturbance (passion) and fall within the elements of Article 101 of the Criminal Code.

Murder arising from a quarrel or a fight. In this type of murder, as a rule, there is no premeditated intent to deprive the victim of life. Any fight constitutes a confrontation between two or more persons accompanied by the mutual infliction of beatings upon one another. Each participant in the fight is in an equally dangerous position with regard to their life and health. They act with indeterminate intent and do not know in advance how far their mutual beating of one another will go. That is precisely why murder committed during a fight, in the absence of aggravating or mitigating circumstances, is classified under Part 1 of Article 99 of the Criminal Code.

Murder during a fight or quarrel may occur in a state of passion (Article 101 of the Criminal Code) or as a result of exceeding the limits of necessary defence (Article 102 of the Criminal Code). A fight may also result in negligent or “accidental” causing of the victim's death.

Murder arising from family disputes. This primarily refers to murder committed under the influence of complicated family relationships and arising from family disputes. Such murder is often committed during a quarrel or fight, out of revenge or jealousy. However, it may also be of an independent nature. The murder in question is subject to classification under Part 1 of Article 99 of the Criminal Code only in cases where it does not fall within the elements of Part 2 of Article 99 or Articles 100–103 of the Criminal Code.

Murder at the victim's request and murder out of compassion for the victim. As a rule, such requests are made by a terminally ill person experiencing unbearable suffering. In this regard, it should be borne in mind that, in accordance with Article 154 of the Code of the Republic of Kazakhstan “On Public Health and the Healthcare System”, medical personnel are prohibited from performing euthanasia — granting a patient's request to hasten their death by any actions or means, including the discontinuation of artificial measures to sustain life.

The subject of murder (Article 99 of the Criminal Code) is a sane natural person who has reached the age of 14. Criminal liability for the remaining crimes against life arises at the age of 16.

Murder committed by omission should be distinguished from leaving a person in danger (Article 119 of the Criminal Code). The distinction primarily lies in the object of the encroachment. In murder, the object is life, whereas in leaving a person in danger, the object is the safety of life and health (Part 1 of Article 119 of the Criminal Code). If the relevant consequences occur as a result of leaving a person in danger, the perpetrator's actions are classified under Parts 2, 3 or 4 of Article 119 of the Criminal Code, depending on the severity of the consequences. In such cases, the objects of leaving a person in danger will also be life and health.

The difference in the objects of the encroachment is also reflected in the characteristics of the victims. In murder, the victim may be any person, whereas in leaving a person in danger, the victim must be a person who is in a life- or health-threatening situation and deprived of the ability to take measures to ensure their own safety.

The distinctive feature of the objective element of the offences under consideration is that harm to the objects of the encroachment is caused not directly through the perpetrator's active actions, but through third-party forces whose negative impact is intentionally used by the perpetrator in an encroachment upon life or allowed in cases of leaving a person in danger. In these cases, the act is carried out through the failure of the perpetrator to fulfil an obligation imposed upon them (criminal omission) or through their withdrawal from the relevant relationship (evasion of the performance of an obligation). The objective element of criminal omission is expressed, in murder, through the intentional use of third-party forces to achieve the result, and, in leaving a person in danger, through abandoning the victim or failing to provide assistance. The difference in the forms of omission is обусловed by the characteristics of the subject, the nature of the obligations imposed upon them, or the actions of the perpetrator that place the victim in danger.

The elements of murder by omission are present where there are circumstances that make it possible to establish the objectively foreseeable use by the perpetrator of unfavourable conditions to achieve specifically foreseeable consequences. If the conduct does not reveal a specific objective pattern of the occurrence of negative consequences, then leaving a person in danger has taken place. Conduct should be classified as murder where the perpetrator intentionally places a person in danger by using the forces of nature to cause death.

By its legal construction, murder is a crime with a material composition, whereas leaving a person in danger is a criminal offence with a formal composition (Part 1 of Article 119 of the Criminal Code). Under Parts 2, 3 and 4 of Article 119 of the Criminal Code, leaving a person in danger is likewise a crime with a material composition, as is murder.

The distinction between murder by criminal omission and leaving a person in danger in terms of the objective element is also manifested in the fact that, in the former case, the person uses unfavourable factors to achieve a criminal result, whereas in the latter case, the perpetrator consciously allows those factors to operate, remaining indifferent to the possible consequences. The difference in the forms of omission is determined by the characteristics of its subject: the nature of the obligations imposed upon them, their conduct and their ability to provide assistance.

For an encroachment upon life, criminal liability arises from the age of 14. Leaving a person in danger requires a special subject who has reached the age of 16 and: a) is under a legal obligation to care for the victim; b) has the ability to provide assistance; and c) has placed the victim in danger. The legal duty of care presupposes the existence of certain legal relationships between the subject and the victim, which impose upon the former an obligation to take active measures to ensure the safety of the life and health of the person under their care.

The difficulty in identifying the subjective element of criminal omission (especially in murder) lies in the fact that the subject causes harm not through their own active actions, but by using third-party forces to achieve their objective. The subjective element of murder presupposes intent in relation to the conduct and the presence of a will to achieve the result, whereas, in leaving a person in danger, direct intent exists only in relation to the failure to fulfil the duty of care or provide assistance, and there is no desire for the harmful consequences to occur.

Murders provided for in Parts 2 and 3 of Article 99 of the Criminal Code are regarded as more socially dangerous offences, and more severe penalties are prescribed for their commission. A qualified murder is generally understood as a murder committed in the presence of at least one of the aggravating circumstances (qualifying elements) listed in Parts 2 or 3 of Article 99 of the Criminal Code. The arrangement of the qualifying elements has practical significance, as it facilitates the process of classifying a particular murder under Part 2 of Article 99 of the Criminal Code.

In general, the system of qualifying elements of murder in the Criminal Code is exhaustive. The Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan “On the Classification of Certain Crimes Against Human Life and Health” is of great importance for distinguishing between individual types of murder.

Murder of two or more persons (subparagraph 1) of Part 2 of Article 99 of the Criminal Code)

An analysis of criminal-law literature shows that there is no consensus in the science of criminal law regarding the interpretation of subparagraph 1) of Part 2 of Article 99 of the Criminal Code. Initially, authors disagreed as to what constituted the basis for identifying the murder of two or more persons as a qualified type of crime; subsequently, they disagreed on the interpretation of the elements of the offence of murder of two or more persons. The problem of interpreting subparagraph 1) of Part 2 of Article 99 of the Criminal Code is still far from being resolved.

There is no doubt that, in identifying the murder of two or more persons as an aggravating circumstance, the legislator proceeded from the need to eliminate a gap whereby the simultaneous causing of death to several persons would remain without proper criminal-law assessment.

The basis for classifying murder under subparagraph 1) of Part 2 of Article 99 of the Criminal Code is the perpetrator's intent to cause the death of several persons simultaneously. In such cases, the murder of two or more persons is generally committed through one act or several acts within a short period of time and demonstrates the perpetrator's single intent to cause the death of two or more persons. Only the murder of two or more persons committed through one act of the perpetrator — an explosion, arson, poisoning, a burst of automatic gunfire, and so forth — may be recognised as simultaneous, where several people die as a result of one act of the perpetrator. Simultaneous murder also includes cases in which the deaths of the victims are caused by different acts committed at the same time. For example, the perpetrator or perpetrators beat two victims, moving from one to the other and causing their deaths.

The murder of two or more persons presupposes the commission of a single crime aggravated by the deaths of several persons. As a rule, it is characterised by unity of time, place of commission, motive and intent of the perpetrator.

In the simultaneous murder of two or more persons, a combination of different motives is not excluded, for example, the simultaneous murder of a former wife out of jealousy and an accidental eyewitness for the purpose of concealing a crime that has been committed.

The causing of death to several persons at different times may also be classified as the murder of two or more persons, but only where the following conditions are met: unity of intent and a single motive for the crime. When classifying murders committed at different times and motivated by different motives, there are no grounds for recognising them as a single crime, even if the murders in question are covered by a single intent. After all, the motive of a crime answers the question of why the perpetrator committed the crime. It is precisely the motive that constitutes the driving force prompting the perpetrator to commit the crime. If there are different motives, this means that there are different crimes. This is particularly true of murders.

Murder at different times means the murder of two or more persons in which the death of each victim was caused by separate acts of the perpetrator. For example, the murder of two or more persons is committed by firing a pistol first at one person and then at another.

Where the perpetrator's intent is directed at the murder of two or more persons, but the intended criminal result — the death of several persons — does not occur due to circumstances beyond the will of the perpetrator, the murder of one person and the attempted murder of another cannot be regarded as a completed criminal offence — the murder of two persons. In such cases, according to the position of the Supreme Court of the Republic of Kazakhstan expressed in paragraph 5 of the Regulatory Resolution “On the Classification of Certain Criminal Offences Against Human Life and Health”, the perpetrator's actions relating to the uncompleted murder are subject to classification under Part 3 of Article 24 of the Criminal Code and subparagraph 1) of Part 2 of Article 99 of the Criminal Code, while the completed murder is classified under Part 1 or Part 2 of Article 99 of the Criminal Code, depending on whether qualifying elements are present. In this regard, the sequence of the perpetrator's actions in the simultaneous murder of one person and attempted murder of another is irrelevant to such classification.

In my opinion, this recommendation is incorrect, since the perpetrator attempted to commit one crime. The objective element of an attempt to murder two or more persons consists of the perpetrator's actions directed at depriving the victims of life, including the person who was actually killed. If the actions directed at causing the death of one of them are excluded from the objective element of the attempted murder of two persons (that is, if they are classified separately), the remaining part of the objective element cannot be regarded as an attempt to murder two persons.

Such “dual” classification of the perpetrator's conduct is possible only in the case of an ideal concurrence of crimes, which is absent in the situation under consideration. A single crime cannot be classified under several Articles of the Criminal Code, since, according to Article 4 of the Criminal Code, no one may be held criminally liable twice for the same criminal offence. It is inadmissible to classify parts of a single crime as a completed offence. Consequently, in my opinion, there can be no concurrence of crimes in this case, and the perpetrator's conduct in such circumstances should be classified as an attempt to commit the crime they intended to commit — under Part 3 of Article 24 and subparagraph 1) of Part 2 of Article 99 of the Criminal Code, that is, an attempt to murder two or more persons.

If, when several persons are murdered, the intent of the co-perpetrators of the crime was directed at depriving several people of life and, in order to carry out that intent, they distributed roles among themselves, as a result of which each participant in the crime directly took part in depriving only one person of life, the actions of each of them are likewise subject to classification under subparagraph 1) of Part 2 of Article 99 of the Criminal Code.

In cases where the intent to murder another person for the purpose of concealing a previously committed murder arises after the first crime has been committed, the conduct should be classified under subparagraph 13) of Part 2 of Article 99 of the Criminal Code as murder committed repeatedly. The perpetrator's intent is an important basis for distinguishing the murder of two or more persons from murder committed repeatedly. In the first case, the perpetrator must have a single intent to cause the death of two or more persons. In the second case, the commission of two or more murders must not be covered by a single intent.

The murder of two persons cannot be classified under subparagraph 1) of Part 2 of Article 99 of the Criminal Code if one of the murders was committed in a state of intense emotional disturbance or by exceeding the limits of necessary defence.

The actions of a perpetrator who simultaneously committed the murder of one person and the negligent killing of another do not contain the elements of the offence under consideration and must be classified as a concurrence of crimes: murder and causing death by negligence.

The aforementioned Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan also emphasises that the murder of two persons cannot be classified under subparagraph 1) of Part 2 of Article 99 of the Criminal Code if liability for one of the murders is provided for by the relevant part of Article 99 of the Criminal Code, while liability for the other is provided for by Articles 100, 101, 102 or 103 of the Criminal Code. In such cases, each crime is subject to separate classification under the relevant provision of criminal law.

If the murder of two or more persons is committed by a method dangerous to the lives of many people, the conduct should be classified under subparagraphs 1) and 6) of Part 2 of Article 99 of the Criminal Code.

If a certain period of time has elapsed between the murder of the first victim and the murder of the second victim, classification under subparagraph 1) of Part 2 of Article 99 of the Criminal Code is possible only if the perpetrator had a single intent to cause the deaths of both victims. For example, the perpetrator first causes the death of one victim and then, in order to carry out their single intent directed at murdering two persons, deprives a second victim of life after a certain period of time and at another location.

Murder of a person or their close associates in connection with the performance of official duties or the fulfilment of professional or public duties by that person (subparagraph 2) of Part 2 of Article 99 of the Criminal Code)

This type of murder is particularly dangerous because it encroaches not only upon the life of the victim, but also upon another object: social relations ensuring that a person is able to perform their official duties or fulfil their professional or public duties.

The victims of this type of crime may be citizens performing official duties (officials or other persons), as well as persons fulfilling professional or public duties, or their close associates. In this type of murder, the perpetrator acts for the purpose of obstructing the victim's lawful activities in performing official duties or fulfilling professional or public duties, or out of revenge for such activities. An example would be the murder of a witness for giving testimony during an investigation or in court.

Liability for murder under this subparagraph of Part 2 of Article 99 of the Criminal Code arises irrespective of when the actions that served as the reason for the murder were committed. It is not necessary for the murder to have been committed precisely while the victim was performing official duties or fulfilling professional or public duties.

The perpetrator's actions are classified under this subparagraph only if the murder was committed in connection with the performance of official duties or the fulfilment of professional or public duties by the victim themselves, and not by other persons, such as their relatives.

When classifying murder under subparagraph 2) of Part 2 of Article 99 of the Criminal Code, it is necessary to establish which lawful actions of the victim, connected with the performance of their official duties or the fulfilment of their professional or public duties, prompted the perpetrator to murder that person or their close associates, since an essential condition for such classification is the perpetrator's intent to encroach upon the life of that person precisely in connection with these circumstances.

In this regard, the performance of official duties should be understood as activities falling within the scope of a person's official responsibilities, while the fulfilment of public duties means the performance by any citizens of both specifically assigned public obligations and any other actions in the interests of society or individual persons (for example, preventing offences, reporting a planned or committed criminal offence, giving witness testimony, and so forth).

L. was found guilty of murder committed in connection with the victim's fulfilment of a public duty under the following circumstances. At a festive evening, L., while intoxicated, engaged in hooligan conduct, climbed onto the stage and began kicking a drum. A member of the orchestra reprimanded L. and asked him to leave the stage. However, L. continued his hooligan conduct in the cloakroom. Security guard K. warned L. that he would take him to the police station. Dissatisfied with this remark, L. threatened

K. with retaliation and then attacked him, knocked him to the ground and began kicking him in the head and other parts of his body. K. died from the injuries sustained.

The fulfilment of professional duties should be understood as the performance by a person of actions connected with a particular profession (for example, an artist creating sketches, portraits or caricatures). In cases where the murder of a victim is committed in connection with the victim's unlawful official activities, classification of the act under subparagraph 2) of Part 2 of Article 99 of the Criminal Code is excluded. In such cases, in the absence of other aggravating or mitigating circumstances, the perpetrator's actions are subject to classification under Part 1 of Article 99 of the Criminal Code.

In cases where a victim, while performing official duties, acts criminally, resistance to that victim cannot be recognised as a crime if the person defending themselves did not exceed the limits of necessary defence. Moreover, conduct in response to the victim's criminal actions cannot be classified as a crime committed in connection with the victim's performance of official or public duties.

A time interval between the victim's performance of official duties or fulfilment of professional or public duties and their murder is irrelevant, since the motive of revenge for the fulfilment of a public duty or the performance of official activities may be acted upon much later than the fulfilment of such duty.

An encroachment upon a person's life (murder or attempted murder) committed for the purpose of violating public security, intimidating the population, influencing decision-making by State bodies of the Republic of Kazakhstan, a foreign State or an international organisation, provoking war or complicating international relations, as well as an encroachment upon the life of a State or public figure committed for the same purposes, or for the purpose of terminating their State or other political activities, or out of revenge for such activities, or an encroachment upon a person's life associated with an attack on persons or organisations enjoying international protection, buildings or structures, the taking of a hostage, the seizure of buildings, structures, means of transport and communications, hijacking, or the seizure of an aircraft, watercraft, railway rolling stock or other public transport, is subject to classification under Part 4 of Article 255 of the Criminal Code.

An encroachment upon the life of an employee of a law enforcement body, a special State body, a serviceman, a State inspector for the protection of wildlife, an inspector of a specialised wildlife protection organisation or a gamekeeper must be classified under Article 380-1 of the Criminal Code.

An encroachment upon the life of an employee of an institution ensuring isolation from society, or their spouse or close relatives, in connection with the performance of that employee's official duties, as well as an encroachment upon the life of a convicted person for the purpose of obstructing their rehabilitation or out of revenge for assistance rendered by that person to the administration of the institution, must be classified under Part 4 of Article 429 of the Criminal Code.

An encroachment upon the life of a judge, juror, prosecutor, person conducting a pre-trial investigation, defence counsel, expert, court bailiff or judicial enforcement officer, as well as their close associates, in connection with the hearing of cases or materials in court, the conduct of a pre-trial investigation or the enforcement of a sentence, court decision or other judicial act, committed for the purpose of obstructing the lawful activities of the aforementioned persons or out of revenge for such activities, must be classified under Article 408 of the Criminal Code. If an encroachment upon the life of the aforementioned persons is not connected with the performance of their official duties, the act must be classified under the relevant part of Article 99 of the Criminal Code, depending on whether qualifying elements are present.

The murder of a person who did not actually administer justice or investigate a case, but who presented themselves to the perpetrator as such a person and performed actions aimed at protecting public order, must be classified under subparagraph 2) of Part 2 of Article 99 of the Criminal Code.

Criminal law protects not only persons performing official duties or fulfilling professional or public duties, but also their close associates. The term “close associates” referred to in subparagraph 2) of Part 2 of Article 99 of the Criminal Code includes not only close relatives listed in subparagraph 11) of Article 7 of the Criminal Procedure Code of the Republic of Kazakhstan, but also other persons whom the individual performing official duties or fulfilling professional or public duties holds dear. In each case, it is necessary to establish that the perpetrator was knowingly aware of their close relationship. An analysis of judicial and investigative practice shows that the murder of close associates is committed precisely in connection with the performance of official duties or the fulfilment of professional or public duties by the victim, with the purpose of forcing the latter to abandon their activities or out of revenge for such activities.

In conclusion of the examination of subparagraph 2) of Part 2 of Article 99 of the Criminal Code, I would like to make the following observation: in my opinion, the practice of identifying specialised offences providing for liability for murder committed in connection with the performance of official duties, depending on the specific nature of the victim's service, should be abandoned. This is unlikely to contribute to strengthening liability, as may initially appear, for encroachments upon the lives of victims in connection with their particular official activities; rather, it merely complicates the application of criminal law. An increasing number of new elements of crimes must be distinguished from one another, which complicates the classification of the perpetrator's actions and sometimes leads to errors in classification. I am convinced that liability for encroachments upon the lives of this category of persons should be uniform.

Murder of a person who is known to the perpetrator to be in a helpless state, as well as murder associated with the kidnapping of a person or the taking of a hostage (subparagraph 3) of Part 2 of Article 99 of the Criminal Code)

The increased public danger of the murder of a person in a helpless state, as well as murder associated with the kidnapping of a person or the taking of a hostage, constituted the grounds for including these elements among the circumstances aggravating guilt in the commission of murder.

In S. I. Ozhegov's Dictionary of the Russian Language, the word “helpless” is defined as being in need of assistance, unable to do something for oneself, while “state” means the position or external or internal circumstances in which someone or something finds themselves. Thus, from the perspective of the Russian language, a helpless state is a situation in which a person, due to certain circumstances, is unable to defend themselves at the moment of an encroachment upon their life. A helpless state may be permanent or temporary, depending on the circumstances causing it. For example, a serious illness causes a helpless state for the duration of the illness, while a disability may cause such a state throughout a person's life. This should not affect the recognition of the existence of a state of helplessness at the moment the victim's death is caused.

In accordance with paragraph 7 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan “On the Classification of Certain Criminal Offences Against Human Life and Health”, murder should be classified under subparagraph 3) of Part 2 of Article 99 of the Criminal Code if the victim, due to their mental or physical condition, was unable to resist the offender and protect themselves from the criminal encroachment committed against them. Such persons may include, in particular, young children (under the Law of the Republic of Kazakhstan dated 27 December 2019, liability for the murder of a young child is established in Part 3 of Article 99 of the Criminal Code — author's note, I.B.), elderly and seriously ill persons, as well as persons suffering from mental disorders that deprive them of the ability to perceive what is happening correctly. The murder of a sleeping person, as well as a person in a helpless state due to severe alcohol or drug intoxication or other reasons, must also be classified under subparagraph 3) of Part 2 of Article 99 of the Criminal Code.

The victim's presence in a helpless state at the moment of being killed must be carefully examined and assessed by the court. In this regard, it should be borne in mind that the victim's young or advanced age and their state of intoxication do not in all cases indicate a helpless state. Therefore, these circumstances must be assessed in light of the specific circumstances of the case (for example, whether the victim actively resisted the attacker, inflicted injuries on them in response, and so forth). Moreover, unlike the age of a young child, advanced age has no clearly defined statutory boundary. Judicial practice encounters difficulties in determining who should be considered “elderly”. Obviously, this is a question of fact. At the same age, one person may become helpless due to age, while another may not. The same applies to illness, which is not identical to a state of helplessness.

For murder to be classified under subparagraph 3) of Part 2 of Article 99 of the Criminal Code, it is necessary that the victim's helpless state already existed at the moment the perpetrator committed the actions associated with causing the victim's death. It is irrelevant whether the victim themselves brought about that state (sustained an injury after falling in the street, consumed alcoholic beverages or narcotic substances, and so forth) or whether the state arose as a result of the actions of other persons.

According to the Supreme Court of the Republic of Kazakhstan, the perpetrator's actions (administering sleeping pills, alcoholic beverages or narcotic substances, tying the victim up, striking them or inflicting bodily injuries resulting in loss of consciousness), committed for the purpose of placing the victim in a helpless state and facilitating the implementation of the intent to murder, constitute part of the objective element of this crime. In such cases, causing the victim's death cannot be classified under subparagraph 3) of Part 2 of Article 99 of the Criminal Code.

It should be agreed that causing the victim's death cannot be classified under subparagraph 3) of Part 2 of Article 99 of the Criminal Code in a case where, for example, the perpetrator, wishing the victim dead, began strangling them with their hands and, after the victim lost consciousness, inflicted several knife blows to the heart. In this case, the perpetrator's actions should not be classified as the murder of a person in a helpless state under subparagraph 3) of Part 2 of Article 99 of the Criminal Code, but as “simple” murder under Part 1 of Article 99 of the Criminal Code (provided that there are no other qualifying elements specified in Part 2 of Article 99 of the Criminal Code).

However, the position of the Supreme Court of the Republic of Kazakhstan regarding the interpretation of a helpless state in paragraph 7 of the Regulatory Resolution “On the Classification of Certain Criminal Offences Against Human Life and Health” is debatable in the part concerning the failure to recognise as a helpless state cases where the perpetrator renders the victim unconscious by administering sleeping pills, alcoholic beverages or narcotic substances, or by tying the victim up, except in cases involving the use of violence.

It appears that if the victim was brought into a helpless state by the perpetrator in the course of committing the murder, subparagraph 3) of Part 2 of Article 99 of the Criminal Code should not apply, since in this case the state of helplessness arises as an inevitable result of the crime. For subparagraph 3) of Part 2 of Article 99 of the Criminal Code to apply, it is necessary to establish that the state of helplessness existed before the commencement of the execution of the objective element of murder. In this regard, it is irrelevant who brought the victim into a helpless state; the main point is that the perpetrator intentionally used the victim's helpless state to deprive them of life.

The current criminal legislation already mentions the concept of a “helpless state” in certain Articles. These are Articles 54, 99, 106, 107, 110, 116, 119, 120 and 121.

In Article 54 of the Criminal Code, the victim's helpless state is recognised as a circumstance aggravating punishment. All the other Articles in which the victim's helpless state is mentioned provide for liability for crimes against the person. In my opinion, the concept of a “helpless state” should be interpreted uniformly in relation to all Articles of criminal law. Only such an approach can ensure consistency and fairness in law enforcement practice. If, however, it is accepted that the concept of a “helpless state” changes its meaning in relation to each Article of the Criminal Code providing for liability for crimes against the person, this would mean accepting arbitrariness in law enforcement practice. Therefore, the starting point for analysing the elements of the murder of a person who is known to the perpetrator to be in a helpless state should be that its interpretation and application must be uniform throughout criminal law.

In criminal-law scholarship, there is an opinion that, by establishing liability for the murder of a person who is known to the perpetrator to be in a helpless state, the legislator had in mind that, in such a case, the victim suffers additional and particular distress. The victim is aware that they are about to be killed or will be killed shortly, but due to their physical condition, they are unable either to resist or to call for help. The murderer knowingly understands this state and therefore acts more cynically and brazenly than someone who, as the saying goes, kills “from around the corner”.

In my opinion, this is an erroneous view and cannot be accepted by the judicial and investigative practice of the Republic of Kazakhstan. The classification of the perpetrator's actions is based on the principle of subjective imputation, that is, in this case, on the nature and direction of their intent. In order to hold a person liable for murder under subparagraph 3) of Part 2 of Article 99 of the Criminal Code, it is necessary to establish that the perpetrator intentionally caused the death of a person who was known to them to be in a helpless state. In other words, the law requires that the perpetrator be aware that the victim is in a helpless state and intentionally use that state to cause the victim's death. The law does not require that the victim be aware of the nature of what is happening. On the contrary, the law presupposes that a victim in a helpless state may be unaware of the nature of what is happening, for example, due to unconsciousness. Such an expansive interpretation of the law would allow perpetrators to evade fair punishment for qualified murder.

I would also like to draw the attention of the Supreme Court of the Republic of Kazakhstan to one more issue. At present, judicial practice in Russia is inconsistent with regard to whether sleep should be recognised as a helpless state. Initially, sleep was recognised as a helpless state of the victim, and subsequently it was not. According to the Supreme Court of the Russian Federation, sleep cannot be classified as a helpless state of the victim because it is a vital and physiologically conditioned state of a person. Knowing how unreservedly we accept the judicial practice of our neighbouring country, I would like to warn against adopting this erroneous Russian practice.

Illness, old age and many other human conditions are also necessary and physically conditioned, since they are determined not by the person but by nature. The key question is whether a person who is asleep is in a helpless state known to the perpetrator. A state of sleep is characterised by helplessness, in which the victim is unable either to defend themselves or to resist the perpetrator. A person who is asleep is completely helpless and defenceless against the perpetrator at that time. Therefore, the failure to recognise sleep as a helpless state is not based on the law and contradicts both the requirements of the law and sound logic.

When classifying murder associated with the kidnapping of a person, it should be borne in mind that liability under subparagraph 3) of Part 2 of Article 99 of the Criminal Code arises when the kidnapped person is murdered, as well as when other persons are murdered in connection with the kidnapping (for example, the intentional unlawful causing of the death of a person who obstructs the kidnapping). In such cases, kidnapping and murder constitute a concurrence of crimes, and each crime is subject to separate classification under the relevant parts of Articles 125 and subparagraph 3) of Part 2 of Article 99 of the Criminal Code. Intentional murder committed during the taking of a hostage or while the hostage is being held must be classified separately under the relevant parts of Articles 99 and 261 of the Criminal Code, depending on the qualifying elements established for each crime.

The subparagraph of Part 2 of Article 99 of the Criminal Code under consideration applies irrespective of the moment at which the victim was deprived of life — during the process of their kidnapping (seizure) or after a certain period of time had elapsed.

Murder of a woman who is known to the perpetrator to be pregnant (subparagraph 4) of Part 2 of Article 99 of the Criminal Code)

Liability for this type of murder is increased because it presents an elevated degree of public danger, given that the perpetrator deprives not only the woman of life but also her foetus — the embryo of a future human life.

When classifying murder under subparagraph 4) of Part 2 of Article 99 of the Criminal Code, it is necessary to establish that, at the time of committing the murder, the perpetrator knew for certain that the victim was pregnant. In this regard, the duration of the pregnancy, whether the victim was registered with the relevant medical institution in connection with the pregnancy, the viability of the foetus, and so forth are irrelevant to the classification.

The law does not use the concept “known to the perpetrator” by accident. The word “known” means “well-known, certain”. The use in the law of the concept “known to the perpetrator” means that the perpetrator must be convinced that the victim is pregnant.

The perpetrator may become aware of the pregnancy from the victim's appearance or statement, or on the basis of examining medical documents. In any event, the information concerning the state of pregnancy must be reliable. A person who did not know that the victim was pregnant is not criminally liable under this subparagraph. Whether or not the foetus died as a result of the encroachment upon the pregnant woman's life is also legally irrelevant for classification under this subparagraph.

The murder of a pregnant woman may be committed with either direct or indirect intent with regard to the victim's death. The motives for the murder may vary and are irrelevant to the classification. For example, a person who murders a pregnant woman out of jealousy is liable under subparagraph 4) of Part 2 of Article 99 of the Criminal Code.

The issue of the perpetrator's factual mistake regarding the victim's state of pregnancy is one of the most controversial in criminal law. Criminal-law literature proposes the following options for classifying the actions of a perpetrator who mistakenly believed that they were causing the death of a pregnant woman, when in fact the woman was not pregnant:

under subparagraph 4) of Part 2 of Article 99 of the Criminal Code;

under Part 3 of Article 24 and subparagraph 4) of Part 2 of Article 99 of the Criminal Code;

under Part 1 of Article 99 of the Criminal Code;

under Part 3 of Article 24, subparagraph 4) of Part 2 of Article 99 and Part 1 of Article 99 of the Criminal Code.

In my opinion, the most preferable classification is as an attempt to murder a woman who is known to the perpetrator to be pregnant, that is, under Part 3 of Article 24 and subparagraph 4) of Part 2 of Article 99 of the Criminal Code.

In fact, the perpetrator committed simple murder under Part 1 of Article 99 of the Criminal Code. However, they sought to cause the death of a pregnant woman but failed to achieve this criminal result for reasons beyond their control. Since the perpetrator's intent was directed at committing qualified murder, their actions should be classified according to the direction of that intent, that is, under Part 3 of Article 24 and subparagraph 4) of Part 2 of Article 99 of the Criminal Code. An attempt to commit qualified murder is more dangerous than a completed simple murder. This classification most fully reflects the direction of the perpetrator's actions and is consistent with the principle of subjective imputation on which criminal law is based. If the perpetrator's intent was directed at committing a more serious crime than the one actually committed, the perpetrator's actions are classified according to the direction of their intent.

A factual mistake regarding the existence of pregnancy in the victim may also occur in cases where: 1) the perpetrator believed that the victim was not pregnant, whereas in fact the deceased was pregnant; 2) the perpetrator encroached upon the life of a pregnant woman but made a mistake as to her identity and caused the death of an unrelated person. The solution to these issues appears to be as follows:

If the perpetrator mistakenly believed that the victim was not pregnant, whereas the deceased was in fact pregnant, then, in the absence of other aggravating circumstances, the act should be classified as simple murder under Part 1 of Article 99 of the Criminal Code. A qualifying circumstance that was not covered by the perpetrator's intent cannot be imputed to them.

In the case of a mistake as to the identity of the pregnant woman, the following situations are possible:

the perpetrator intended to take the life of one pregnant woman but, having mistaken her identity, actually caused the death of another pregnant woman;

the perpetrator intended to take the life of a pregnant woman but, having mistaken her identity, actually caused the death of another woman who was not pregnant, or of some unrelated person.

In the first case, the mistake as to the identity of the pregnant woman does not affect the classification of the perpetrator's actions. Their actions should be classified under subparagraph 4) of Part 2 of Article 99 of the Criminal Code. In the second case, the perpetrator's actions should be classified under Part 3 of Article 24 and subparagraph 4) of Part 2 of Article 99 of the Criminal Code as an attempt to murder a woman who is known to the perpetrator to be pregnant, that is, according to the direction of their intent.

Murder Committed with Particular Cruelty (Subparagraph 5) of Part 2 of Article 99 of the Criminal Code)

Every murder is a grave and cruel act.

Under subparagraph 5) of Part 2 of Article 99 of the Criminal Code, a murder must be classified as such where the perpetrator displayed particular cruelty in committing it, which may be associated both with the method of killing and with other circumstances.

In S.I. Ozhegov’s Dictionary, the concept of “cruelty” is explained through the concept of “cruel,” meaning extremely harsh, merciless, and ruthless. Cruelty is an exclusively human characteristic; it does not exist in nature. A person may display cruelty toward all living beings. In essence, cruelty is misanthropy. A humane person will not inflict torment and suffering on others, and it is precisely the infliction of torment and suffering on other people that constitutes the principal characteristic of cruelty. Cruelty encompasses torment, torture, tormenting abuse, mockery, and sadism, because all these terms reveal different aspects of one phenomenon—the infliction of physical and (or) moral (psychological) suffering.

Particular cruelty in murder consists in inflicting particular physical and (or) moral suffering on the victim, that is, severe, sufficiently prolonged, and repeated suffering. The perpetrator consciously and intentionally inflicts additional, severe, prolonged physical and moral suffering. It is precisely the combination of the process of killing with the conscious and intentional infliction of additional, severe, prolonged physical and (or) moral suffering extending beyond the process of causing death that constitutes the concept of “particular cruelty.” This demonstrates the inhuman mercilessness and ruthlessness of the perpetrator.

The intentional infliction of death on a victim with particular cruelty presupposes a special, “inhuman” degree of cruelty and the manifestation of exceptional mercilessness and sadism.

Article 17 of the Constitution of the Republic of Kazakhstan provides that human dignity is inviolable and that no one shall be subjected to torture, violence, or other cruel or degrading treatment or punishment.

The following circumstances may indicate particular cruelty:

the method of killing (inflicting a large number of injuries on the victim, burying the victim, depriving the victim of water or food, using a poison with a painful effect, acid, etc.);

the manifestation of sadism before depriving the victim of life or in the course of committing the murder (the use of torture, torment, and mockery of the victim);

the infliction of moral suffering on the victim’s close relatives in whose presence the murder is committed.

When assessing circumstances relating to the method of causing death, it should be taken into account that, where particular cruelty toward the victim is involved, the perpetrator intentionally performs acts that cause the victim particular physical or moral torment and suffering. The element of particular cruelty is present, in particular, in cases where, before the murder or during its commission, the victim was subjected to torture, torment, or mockery, or where the murder was committed by a method that the perpetrator knew in advance would cause the victim particular torment and suffering (beating the victim or inflicting a large number of wounds before death, tormenting the victim over a prolonged period), using an especially painful poison, burning the victim alive, leaving the victim in freezing conditions without warm clothing, depriving a person of food and water for a prolonged period for the purpose of causing death, etc.

The multiplicity of wounds inflicted during the commission of a murder does not in itself constitute grounds for classifying the act under subparagraph 5) of Part 2 of Article 99 of the Criminal Code unless it is established that the perpetrator’s intent encompassed the infliction of particular torment and suffering on the victim. The nature and severity of the injuries inflicted are irrelevant for recognizing a murder as having been committed with particular cruelty.

A murder should be recognized as having been committed with particular cruelty where the perpetrator inflicts injuries with the purpose of causing the victim’s death and, at the end, pours gasoline over the victim and sets the victim on fire, as a result of which death occurs.

The concept of particular cruelty is associated both with the method of killing and with other circumstances indicating the perpetrator’s manifestation of particular cruelty. F., P., and S. took the victim to a forest, where F. showed her a knife, and P. announced that she would be killed. The victim was then tied with a rope. By the light of lit candles, P. administered the drug “Relanium” to the victim intravenously, while F. dug a pit and, after untying the victim, led her to the pit. The victim begged them not to kill her and promised not to report them to the police, but P. announced that “she could not be left alive.” F. stabbed her in the chest, aiming at the heart. After being wounded, the victim attempted to flee, but F. caught up with her and again led her to the pit. The victim again begged them not to kill her, but P. demanded that the victim be “finished off”; however, F. refused. P. then gave S. a shovel, and S. struck the victim several times on the head. P. subsequently demanded that the victim lie down in the pit and, when the victim complied, struck her several times with the pointed end of the shovel on the head and neck, as a result of which the victim died.

Particular cruelty may also be expressed in committing a murder in the presence of persons close to the victim. Such persons may include not only those specified in subparagraph 11) of Article 7 of the Criminal Procedure Code who are related to the victim, but also other persons who, due to their established relationships with the victim, are close to the victim (spouses, persons in de facto marital relationships, fiancés, guardians, custodians and their wards, etc.), and whom the victim values. In such cases, the perpetrator’s subjective attitude is characterized by direct intent aimed not only at depriving the victim of life but also at causing particular torment and suffering to the victim’s close relatives, who witness the very process of depriving the victim of life. At the same time, it is necessary to establish not only the fact that persons close to the victim were present during the murder, but also that the perpetrator was aware that the crime was being committed in their presence.

The successive killing of persons related to one another or having close relationships, in each other’s presence, may be classified as murder committed with particular cruelty if the perpetrator wished to inflict particular moral torment and suffering on each of them before death by killing their loved ones in their presence. B. returned home intoxicated, where his wife, son, and daughter-in-law lived with him. A conflict arose between B. and the latter two, during which B., having an obvious physical advantage, inflicted traumatic brain injuries on his daughter-in-law and son, after which they were effectively unable to offer active resistance or pose a threat to B. Despite this, B. went out into the garden, took a metal rod, and struck his son and daughter-in-law several times in vital organs, after which they died at the scene. The particular cruelty of B.’s murders is evidenced not only by the infliction of a large number of bodily injuries that caused pain and suffering to the victims, but also by the fact that the murders were committed in the presence of their mother, as well as persons close to one another—the husband and wife.

A murder committed in the presence of the victim’s relatives, where no close relationship had developed between them and the perpetrator was aware of this in advance, cannot be classified under subparagraph 5) of Part 2 of Article 99 of the Criminal Code, since the perpetrator did not cause them particular moral torment and suffering.

When causing death with particular cruelty, the perpetrator must be aware of the particularly cruel nature of the act and must either desire or consciously accept precisely such a nature of the killing.

Particular cruelty is expressed not only in objective actions but also in the perpetrator’s mental attitude. The concept of “particular cruelty” is not a medical concept but a legal one. The question of whether this qualifying element of murder is present or absent is decided by investigative or judicial authorities in accordance with the norms of morality and ethics established in civilized society. Medical experts are competent to determine whether the victim experienced particular suffering before death as a result of a specific method of killing. It should be noted that the destruction or dismemberment of a corpse should not always be regarded as desecration of a corpse or a manifestation of particular cruelty. If such actions are committed for the purpose of concealing the murder, or for the purpose of consuming the victim’s flesh (cannibalism), they do not constitute the element of particular cruelty.

The motives for particular cruelty may vary: malice, jealousy, revenge, greed, etc. They do not affect the classification of murder under subparagraph 5) of Part 2 of Article 99 of the Criminal Code.

A murder may be classified under subparagraph 5) of Part 2 of Article 99 of the Criminal Code not only where the perpetrator specifically sought to display particular cruelty, but also where the perpetrator was aware of the particular painfulness of the chosen method of depriving the victim of life and knowingly proceeded with it.

The disfigurement of a corpse or desecration of it after the commission of murder, provided that the perpetrator was aware that death had actually occurred (except in cases of dismemberment for the purpose of concealing the corpse), must be independently classified under the relevant part of Article 314 of the Criminal Code, while the act as a whole must be classified as a combination of criminal offenses. There is no need to classify these actions under subparagraph 5) of Part 2 of Article 99 of the Criminal Code.

Murder Committed by a Method Dangerous to the Lives of Other Persons (Subparagraph 6) of Part 2 of Article 99 of the Criminal Code)

To classify intentional murder as having been committed by a method dangerous to the lives of other persons, it is necessary to establish that, while carrying out the intent to kill a specific person (or persons), the perpetrator was aware that the method being used posed a real danger to the lives and health of other persons, through an explosion, arson, firing shots in places where people gather, etc. For such classification of murder, it is sufficient that the chosen method of killing was genuinely dangerous to the lives of other persons, whose murder was not covered by the perpetrator’s intent. It is irrelevant whether death or harm to the health of persons exposed to danger was actually caused by the use of that method of murder, or how many such persons there were.

When classifying intentional murder under subparagraph 6) of Part 2 of Article 99 of the Criminal Code, the number of persons who actually suffered as a result of the method of killing chosen by the perpetrator in relation to the victim whom the perpetrator intended to kill is irrelevant. The actual deprivation of life of only one person does not preclude the application of subparagraph 6) of Part 2 of Article 99 of the Criminal Code if the method of killing itself was dangerous to the lives of several persons. The danger of causing death to other persons must be real rather than imaginary, must actually exist and not merely be presumed. The existence of a real danger to the lives of persons is established in each specific case, taking into account all the circumstances of the case, in particular the destructive properties of the means of committing the crime chosen by the perpetrator, the presence at the scene of persons other than the victim, the relative positions of the victim and other persons, the size of the affected area, and other circumstances.

In this type of murder, the perpetrator acts with direct intent to kill a specific person. The perpetrator’s attitude toward causing death or harm to the health of other persons is expressed in the form of indirect intent. If the murder of one person by a method dangerous to the lives of other persons results in the deaths of several persons, the perpetrator’s actions must be classified under subparagraphs 1) and 6) of Part 2 of Article 99 of the Criminal Code. If the said actions result in the death of one person and harm to the health of another person, the classification must be made cumulatively under the relevant provisions: subparagraph 6) of Part 2 of Article 99 of the Criminal Code and the corresponding articles of the Criminal Code providing for liability for causing harm to health (Articles 106 and 107 of the Criminal Code).

Where, in a murder committed by a method dangerous to the lives of other persons, death is caused to a person other than the one whom the perpetrator intended to kill, the act should be classified under subparagraph 6) of Part 2 of Article 99 of the Criminal Code. However, when recognizing a murder as having been committed by a method dangerous to the lives of other persons, pre-trial investigation bodies and courts do not always examine the circumstances of the case in detail and, in particular, the situation in which this type of murder was committed. Above all, they fail to pay attention to the distance between the perpetrator and the victim at the time of the murder, which leads to classification errors. In the evening, M., who was intoxicated, was walking past one of the cafés in a rural district, where he heard a group of young people directing obscene language at him because of his intoxicated state. Deciding to take revenge on the most active member of the group, M. took a pistol from his home and returned to the café he had previously passed. Approaching the group of people at close range, he fired at point-blank range at the main person who had insulted him. The pre-trial investigation authorities and courts at all levels classified the act as murder committed by a method dangerous to the lives of other persons. We consider such a decision by the law enforcement authorities erroneous and inconsistent with the applicable legislation, since the shot was fired from such a close distance that it posed no danger to those standing nearby, a circumstance that was not taken into account by the judicial and investigative authorities. The act committed should have been classified under Part 1 of Article 99 of the Criminal Code.

Murder Committed by a Group of Persons or by a Group of Persons Acting in Prior Conspiracy (Subparagraph 7) of Part 2 of Article 99 of the Criminal Code)

This type of murder is committed through the use of various forms of complicity, the characteristics of which are set out in Article 31 of the Criminal Code. As with any form of complicity, it presupposes the intentional participation of two or more persons in depriving another person of life.

“When a criminal offense is committed by several persons,” states paragraph 2 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan “On the Classification of Certain Criminal Offenses Against Life and Health,” “it is necessary to determine whether they had a prior agreement to commit the criminal offense, whether roles were distributed among them, what actions each of them performed in committing the criminal offense, as well as all other circumstances on the basis of which a conclusion may be drawn that the act was committed by a group of persons, a group of persons acting in prior conspiracy, or a criminal group, in order to determine the form of complicity of each person held liable, individually classify their actions, and impose a fair punishment.”

In accordance with Part 2 of Article 28 of the Criminal Code, perpetrators of murder should be recognized as persons who acted with a common intent to kill the victim and who themselves directly participated in the process of causing the victim’s death, or did so through the use of other persons who are not subject to criminal liability by reason of age, insanity, or other circumstances provided for by the Criminal Code. Their actions are subject to classification under the relevant part and subparagraphs of Article 99 of the Criminal Code. The actions of other accomplices to the murder who, in accordance with Parts 3, 4, and 5 of Article 28 of the Criminal Code, are recognized as organizers, accomplices, or instigators of the crime, provided that they were not simultaneously co-perpetrators of the crime, must be classified under the article providing for liability for the crime committed, with reference to Article 28 of the Criminal Code.

A murder should be recognized as having been committed by a group of persons if it was committed through the joint efforts of two or more perpetrators of a criminal offense who acted without prior conspiracy. A murder is recognized as having been committed by a group of persons when two or more persons, acting jointly with the intent to commit murder, directly participated in the process of depriving the victim of life by applying violence against the victim. It is not necessary that each of them inflicted the injuries that caused death (for example, one suppressed the victim’s resistance and deprived the victim of the ability to defend themselves, while the other inflicted the fatal injuries).

Any other participation in a murder that does not involve the use of violence does not constitute co-perpetration (for example, handing the murderer a knife or rope at the time of the crime, illuminating the crime scene, locking doors, or distracting the victim’s attention).

A murder should also be recognized as having been committed by a group of persons where, in the course of one person’s actions aimed at intentionally causing death, another person (or other persons) joins that person for the same purpose. A person may be recognized as a perpetrator of murder if that person not only had the intent to commit murder but also directly participated in depriving the victim of life. The actions of a person who merely assisted the perpetrator (or perpetrators) of the murder in carrying out the criminal intention, gave advice on the method, time, or place of the murder, or otherwise created conditions conducive to the commission of the murder, must be regarded as aiding and abetting murder. Concealing a murder without prior promise to do so (including providing assistance in concealing the corpse) does not constitute complicity. Such actions are classified under Article 432 of the Criminal Code.

Complicity in murder in the form of aiding and abetting does not constitute the qualifying element of “commission of a crime by a group of persons.”

D. and V. were convicted of murder committed by a group of persons in connection with robbery. The convicted D. requested that the judgment be overturned insofar as it convicted her of murder, since she had not been involved in the killing of the victim. The Judicial Panel of the Supreme Court amended the judgment on the following grounds. It follows from the judgment that, having agreed with V. to commit a robbery against P., D. struck the victim on the head with a bottle during a fight between him and V. in order to suppress his resistance, causing bodily injuries that did not result in harm to health. Realizing that P. could prevent them from taking possession of the property, V. decided to kill him and suggested that D. make a rope out of a towel. Using the rope she had made, V. tied P.’s legs and arms and, making a noose, strangled him. The court classified these actions of V. and D. as murder committed by a group of persons. However, a murder is recognized as having been committed by a group of persons when two or more persons directly participated in depriving the victim of life by applying violence against the victim. Such circumstances were not established in the present criminal case. The court hearing established that D. used violence (struck the victim on the head with a bottle) during the robbery for the purpose of suppressing the victim’s resistance, and not for the purpose of depriving him of life. The circumstances that D. made and handed V. the rope with which P. was tied and strangled, and that she was present while V. strangled the victim, indicate only her aiding and abetting in the murder. The qualifying element of murder “by a group of persons” is absent from the actions of D. and V. In view of the foregoing, the Judicial Panel classified the crime under Part 5 of Article 28 and subparagraph 8) of Part 2 of Article 99 of the Criminal Code and excluded the element of “commission by a group of persons.”

If persons agreed in advance to jointly commit a criminal offense and each of them subsequently participated in its commission, the murder should be recognized as having been committed by a group of persons acting in prior conspiracy, regardless of whether all of them were perpetrators or whether the form of complicity of any of them in committing the criminal offense was different (organizers, instigators, or accomplices).

Conspiracy is an agreement to combine efforts for the purpose of killing the victim. The requirement that the conspiracy be prior means that the persons participating in the crime agreed to kill the victim before they began directly depriving the victim of life, that is, at the preparation stage, before the commencement of the attempt stage. At the attempt stage, it is possible only to join a crime that is already being committed.

The conspiracy to commit murder itself may take place either long before the commission of the crime or immediately before the victim is deprived of life. From the standpoint of the law, it is irrelevant when precisely the persons agreed to commit the murder; the main point is that this occurred before the commencement of the execution of the objective elements of the offense.

Conspiracy may take any form: verbal, written, in the form of conclusive actions, through a glance, etc.

A conspiracy to commit murder may also take place in the course of committing another crime. For example, the perpetrators begin beating the victim and cause moderate harm to the victim’s health, and during the beating they decide to kill the victim and inflict fatal injuries. In this case, their actions should be classified as murder committed by a group of persons acting in prior conspiracy, because the conspiracy to commit murder took place before the perpetrators performed actions directly aimed at depriving the victim of life. In this case, no additional classification under the article providing for liability for causing harm to health is required, since the initially conceived act developed into a more dangerous crime.

Complicity in the murder of a newborn child by the mother, committed jointly with another person, is impossible. Therefore, the actions of the child’s mother must be classified under Article 100 of the Criminal Code, and the actions of the other person under Part 3 of Article 99 of the Criminal Code, that is, as the murder of a minor child.

The main distinction between murder committed by a group of persons and murder committed by a group of persons acting in prior conspiracy lies in the time when the conspiracy to kill the victim is reached. In murder committed by a group of persons acting in prior conspiracy, the agreement to kill is always reached by all perpetrators before the commencement of actions aimed at depriving the victim of life. In murder committed without prior conspiracy, it is reached afterward.

When committing murder by a group of persons acting in prior conspiracy, the participants in the crime enter into an agreement to achieve a criminal result, that is, they always act with direct and specific intent to deprive the victim of life. The specific feature of murder committed by a group of persons without prior conspiracy is that it may be committed with either direct or indirect intent on the part of the perpetrators, that is, where they merely accept or remain indifferent to the possible death of the person they have selected.

In cases where murder by means of an explosion, arson, or another generally dangerous method is accompanied by the destruction of or damage to another person’s property, the act, in addition to subparagraph 6) of Part 2 of Article 99 of the Criminal Code, should also be classified under Part 2 or Part 3 of Article 202 of the Criminal Code. Likewise, if, when destroying or damaging another person’s property by arson or another generally dangerous method, the perpetrator foresaw and desired, or did not desire but consciously accepted, such consequences of the act as the death of a person or harm to the victim’s health, the act constitutes a combination of crimes provided for by Part 2 or Part 3 (depending on the amount of damage caused) of Article 202 and, depending on the intent and consequences, subparagraph 6) of Part 2 of Article 99 or Articles 106 and 107 of the Criminal Code.

If the perpetrator, in violation of the rules for handling sources of increased danger, did not foresee the possibility of the victim’s death, the perpetrator, where grounds exist, must be held liable under Article 104 of the Criminal Code for causing death through negligence. In a situation where the perpetrator, while carrying out an explosion, arson, etc., has no intent to deprive a specific person of life but foresees the possibility of the victim’s death and the victim (or victims) dies as a result of the perpetrator’s actions, the act, where grounds exist, may be classified under Articles 255 and 294 of the Criminal Code (or other relevant articles) and, cumulatively, under the corresponding subparagraph of Article 99 of the Criminal Code as murder with indirect intent, without taking into account subparagraph 6) of Part 2 of Article 99 of the Criminal Code.

Murder Committed for Mercenary Motives, for Hire, or in Connection with Robbery or Extortion (Subparagraph 8) of Part 2 of Article 99 of the Criminal Code)

This subparagraph contains several aggravating circumstances.

The concept of “mercenary motives” is based on the concept of “mercenary interest.” It is decisive in analyzing murder committed for mercenary motives. S.I. Ozhegov defines mercenary interest as gain or material benefit (Ozhegov S.I. Dictionary of the Russian Language. Moscow, 1990. p. 299).

Mercenary motives are characterized by the desire to become unlawfully enriched at the expense of violating the rights and interests of others. Murder committed for the purpose of obtaining material benefit for oneself or other persons (property rights, the right to housing, receiving remuneration from third parties, etc.) or for the purpose of avoiding material expenses (returning property, repaying a debt, paying for services, paying alimony, fulfilling material obligations and payments, etc.) is subject to classification under subparagraph 8) of Part 2 of Article 99 of the Criminal Code as murder committed for mercenary motives.

Mercenary motives (mercenary interest) in the commission of murder mean the perpetrator’s desire to acquire material benefits or unwillingness to lose material benefits (to incur material expenses) for themselves and (or) other persons, where the attack on the victim serves as a means of achieving these objectives. It is irrelevant whether the material benefits were subsequently to be acquired or alienated on a lawful or unlawful basis. It is not necessary for the mercenary objectives to be achieved as a result of causing death. What matters is that the intent to take possession of the murdered person’s property or other mercenary interest arose before the commission of the crime and determined the murder; otherwise, classification of the act under subparagraph 8) of Part 2 of Article 99 of the Criminal Code is excluded. For example, if a murder was committed for other motives and the perpetrator subsequently took possession of the victim’s material valuables pursuant to an intent that arose suddenly, classification of the act as murder committed for mercenary motives is not permitted.

In murder committed for mercenary motives, the perpetrator cannot pursue the objective of unlawfully taking another person’s property as a result of an attack on the victim’s life, since in that case the act must be classified as a combination of crimes: robbery and murder connected with robbery.

A murder is also recognized as having been committed for mercenary motives in cases where the perpetrator fails to achieve the mercenary objectives pursued when committing the crime, since the law recognizes as an aggravating circumstance of murder the motives of the perpetrator that determine the commission of that crime.

A murder is recognized as having been committed for mercenary motives regardless of who turned out to be the victim. If the perpetrator was mistaken about the victim’s identity, the act should be classified as murder committed for mercenary motives, since it was precisely the motive that determined the nature and direction of the perpetrator’s actions.

Murder committed for mercenary motives is considered completed from the moment the victim dies, regardless of whether the perpetrator achieves the mercenary objectives.

The actions of a person who commits murder for remuneration must also be classified under subparagraph 8) of Part 2 of Article 99 of the Criminal Code as murder for hire, while the actions of the person who organized the murder or induced the perpetrator to commit murder for remuneration must be classified under Parts 3 or 4 of Article 28 and subparagraph 8) of Part 2 of Article 99 of the Criminal Code.

Where the organizer and the perpetrator jointly commit the murder of the victim, the act committed by them must additionally be classified under subparagraph 7) of Part 2 of Article 99 of the Criminal Code as murder committed by a group of persons acting in prior conspiracy.

If the “client” of the murder acts for mercenary motives, then, in our opinion, their actions should be classified cumulatively as the actions of an organizer of a mercenary murder and murder for hire.

The concept of “hire” is directly related to such derivative terms as “to hire” and “mercenary,” because the murderer is “hired” or acts as a “mercenary” for a certain period. In S.I. Ozhegov’s dictionary, the meanings of these concepts are explained as follows: “to hire” means to employ someone or obtain something for temporary use in exchange for payment, while a “mercenary” is someone who has sold themselves to another person, someone who, for base, mercenary motives, defends the interests of others. Accordingly, murder for hire presupposes:

commission of the crime in exchange for a certain remuneration;

in the interests of another person.

The distinguishing feature and mandatory element of this type of murder is the distribution of roles among the accomplices. The client acts as an instigator or organizer of the crime. Their motives for committing the criminal act may be any (mercenary interest, revenge, jealousy), including political motives. The person who directly carries out the criminal plan in exchange for remuneration is the perpetrator.

The client of a murder for hire must be held liable for complicity in murder for hire under the relevant part of Article 28 and subparagraph 8) of Part 2 of Article 99 of the Criminal Code, despite the absence of a mercenary motive on the client’s part. For the classification of the actions of accomplices in this type of murder, it is important to establish the existence of the purpose of obtaining remuneration only on the part of the perpetrator. However, if the perpetrator of a contract killing committed the crime not for the purpose of obtaining remuneration but out of pity or compassion, such murder cannot be classified under subparagraph 8) of Part 2 of Article 99 of the Criminal Code. For example, a woman persuades a close acquaintance to kill her husband because of his systematic humiliation of her human dignity.

Since at least two persons always participate in murder for hire, one acting as the client of the crime and the other as its perpetrator, attention should be paid to the motives underlying the actions of both, although it is the actions of the perpetrator that determine the classification of the crime committed. It is precisely the motives on the basis of which the perpetrator committed the crime that underlie the classification of murder as having been committed for hire. A motive is a conscious impulse that gave rise to a person’s determination to commit a crime.

The motives of the client and the perpetrator may differ, which gives rise to problems in classification. If the client acted out of revenge for the victim’s lawful performance of official duties, the client’s actions must be classified as complicity in murder for hire committed in connection with the victim’s performance of official duties.

The perpetrator’s actions must be classified depending on whether the perpetrator was aware of the client’s motives. If the perpetrator was aware that they were committing murder for hire because the client wished to take revenge on the victim in connection with the victim’s performance of official duties, the perpetrator’s actions must be classified under subparagraphs 2) and 8) of Part 2 of Article 99 of the Criminal Code. Otherwise, only under subparagraph 8) of Part 2 of Article 99 of the Criminal Code.

If the client hires a perpetrator to kill a person whose life is protected by a special article, for example, for the purpose of terminating the activities of a state or public figure, and the perpetrator knows about the victim’s state and public activities, the classification must be as follows: the client’s actions are subject to classification under Part 4 of Article 255 of the Criminal Code and Part 4 of Article 28 of the Criminal Code, while the perpetrator must be held liable under Part 4 of Article 255 of the Criminal Code, since Article 99 and Part 4 of Article 255 of the Criminal Code relate to one another as a general and a special provision, and in cases of competition between them the special provision always applies. In this case, the client hired the perpetrator not to commit murder for hire but to carry out an attack on a state or public figure.

The classification should be similar in cases involving the offenses provided for in Articles 380-1 and 408, and Part 4 of Article 429 of the Criminal Code. If the perpetrator did not know the client’s motives, the perpetrator’s actions are subject to classification under subparagraph 8) of Part 2 of Article 99 of the Criminal Code, while the client’s actions are classified as complicity in the crime provided for by the special article.

The distinction between murder committed for mercenary motives and murder for hire lies in the fact that, in mercenary murder, the perpetrator acts on their own initiative, satisfying mercenary motives at the victim’s expense, whereas in murder for hire, the murder is committed on the initiative of the client, who thereby satisfies the perpetrator’s mercenary motives.

The classification of the actions of a client of murder for hire where the perpetrator does not complete the crime for reasons beyond the perpetrator’s control must correspond to the stage of the unfinished crime. The client’s actions are classified either as preparation for instigating (organizing, aiding and abetting) murder for hire or as an attempt to instigate (organize, aid and abet) murder for hire, that is, under Part 1 (Part 3) of Article 24, Part 3 (Parts 4 or 5) of Article 28, and subparagraph 8) of Part 2 of Article 99 of the Criminal Code.

Where the perpetrator, having received the “order,” takes no steps to carry it out and voluntarily refuses to commit the murder, the client’s act must be classified as preparation for complicity in murder for hire.

If the client fails to persuade the intended perpetrator to commit murder for hire, the client’s actions are subject to classification as preparation for murder for hire, since, in fact, the client performed preparatory actions in this case, but no complicity arose.

If the perpetrator did not initially intend to commit murder for hire and received material remuneration from the client, the perpetrator’s actions may be classified as fraud in accordance with the applicable legislation.

Paragraph 7 of Clause 14 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan “On the Classification of Certain Criminal Offenses Against Human Life and Health” states: “If the organizer of a murder for hire seeks out a perpetrator who was knowingly not intending to cause the victim’s death and whose actions did not go beyond simulating a murder under the supervision of law enforcement authorities, the actions of the person in seeking out a perpetrator for murder for hire constitute preparation for the commission of murder for hire and are subject to classification under Part Three of Article 28, Part One of Article 24, and subparagraph 8) of Part Two of Article 99 of the Criminal Code.”

In my opinion, such persons should not be held criminally liable, but this is a separate subject for research. The organizer of a murder for hire is not liable for the perpetrator’s excess.

If mercenary interest was not the motive for intentional murder, the perpetrator’s actions relating to taking possession of the victim’s property after the murder should be classified under the articles of the Criminal Code providing for liability for criminal offenses against property, while the murder should be classified under Part 1 or the relevant subparagraph of Part 2 of Article 99 of the Criminal Code, depending on the presence of qualifying elements.

Mercenary murder should not be confused with murder in connection with the victim’s failure to repay a debt or refusal to return an item borrowed temporarily. Such murder cannot be classified as having been committed for mercenary motives, since the perpetrator realizes that by this method they are unlikely to recover the debt and, even more so, will not obtain any material benefit. The basis for causing death in this case is not mercenary interest but revenge, and classification under subparagraph 8) of Part 2 of Article 99 of the Criminal Code would be incorrect. Likewise, murder in connection with the victim’s refusal to compensate the perpetrator for damage caused should be regarded as murder motivated by revenge. In such cases, classification is made under Part 1 of Article 99 of the Criminal Code (or under Part 2 of Article 99 if other qualifying elements are present) and under Article 389 of the Criminal Code (if all the elements of that offense are present).

Today, there is considerable disagreement among scholars and practitioners regarding the classification of murders connected with robbery or extortion. The essence of the disagreement is that, in the opinion of some, the actions of perpetrators who commit murder during a robbery should be classified only under subparagraph 8) of Part 2 of Article 99 of the Criminal Code as murder connected with robbery, whereas, in the opinion of others, these actions should be classified cumulatively as crimes under subparagraph 8) of Part 2 of Article 99 and Article 192 of the Criminal Code, “Robbery.” Judicial practice on this issue is also inconsistent, which does not promote uniform application of the law and, in turn, undermines the authority of the judiciary.

The disputes and judicial errors are due to the fact that courts fail to take into account the provisions contained in Article 19 of the Criminal Code. It is high time everyone understood that our system is based not on objective imputation but on subjective imputation. It is precisely the direction of intent that is decisive in classifying a crime. Consequently, if the perpetrator’s intent was directed at committing robbery and, in the course of committing that crime and using violence against the victim, the perpetrator intentionally deprived the victim of life, the act should be classified cumulatively as crimes under subparagraph 8) of Part 2 of Article 99 of the Criminal Code, as well as under subparagraph 5) of Part 2 or subparagraph 1) of Part 3 of Article 192 of the Criminal Code. If other aggravating circumstances are present in the actions of the perpetrator of the robbery (for example, robbery committed by a group of persons acting in prior conspiracy, with unlawful entry into a residential, office, or industrial premises or storage facility, with the use of weapons or objects used as weapons, etc.), these elements of the objective side of robbery must be specified in the descriptive part of the judgment.

The Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan “On the Classification of Certain Criminal Offenses Against Human Life and Health” also emphasizes: “If the perpetrator’s intent was directed at committing robbery or extortion and, in the course of committing these criminal offenses, while using violence against the victim, the perpetrator intentionally deprived the victim of life, the act should be classified cumulatively as criminal offenses under subparagraph 8) of Part 2 of Article 99 of the Criminal Code and the relevant part of Article 192 or Article 194.”

When classifying murder for hire connected with robbery or extortion, it is not necessary to additionally impute the qualifying element of commission of murder for mercenary motives.

If the intent to take possession of property arose after death had been caused and mercenary interest was not the motive for the murder, the perpetrator’s actions relating to taking possession of the victim’s property after depriving the victim of life should be classified under the articles of the Criminal Code providing for liability for criminal offenses against another person’s property, while the murder should be classified under the relevant part of Article 99 of the Criminal Code, depending on the presence of qualifying elements.

The intentional unlawful infliction of death for the purpose of concealing a robbery or extortion committed against the victim after the said criminal offenses is subject to classification under the provision of criminal law providing for liability for the act committed and under subparagraph 10) of Part 2 of Article 99 of the Criminal Code.

The distinction between murder committed for mercenary motives and murder connected with robbery lies in the fact that, in murder committed for mercenary motives, the perpetrator does not perform actions directly aimed at taking possession of another person’s property. In such cases, the perpetrator seeks to obtain certain property benefits, for example, a right to property, or to avoid material expenses, whereas in murder connected with robbery, the purpose of the perpetrator’s actions is the unlawful taking of the victim’s property. In other words, the distinction between them is that, in the first case, the perpetrator has no intention of stealing another person’s property by using violence dangerous to the victim’s life or health, whereas in the second case such an intention exists.

Murder Committed for Hooligan Motives (Subparagraph 9) of Part 2 of Article 99 of the Criminal Code)

Under subparagraph 9) of Part 2 of Article 99 of the Criminal Code, a murder should be classified as having been committed on the basis of an apparent disrespect for society and a gross violation of the norms of morality and ethics, where the perpetrator’s behavior constitutes an open challenge to public order and is driven by the perpetrator’s desire to set themselves in opposition to others and demonstrate a sense of superiority or contempt toward them.

Hooligan motives are distinguished by the uncertainty of the criminal objectives. Such murders are committed without any apparent pretext or reason, or by using an insignificant pretext as an excuse for the murder (the victim refused to give the perpetrator a cigarette, drunken bravado, a demonstration of insolence, outrageous behavior, etc.). The overwhelming majority of murders committed for hooligan motives are committed by persons who are intoxicated. However, the mere fact of intoxication does not constitute proof of a hooligan motive for murder.

It is necessary to establish that the perpetrator’s intent encompassed an attack not only on life but also on public order. Failure to establish the motives for a murder does not constitute grounds for classifying the crime as having been committed for hooligan motives.

A distinction must be made between intentional murder committed for hooligan motives and murder committed on the basis of personal hostility during a quarrel or fight. In deciding this issue, it is necessary to examine and take into account the relationship between the perpetrator and the victim, the pretext and cause of the conflict, identify who initiated the conflict, the activity and nature of the behavior of both parties, and other circumstances. If the victim was the instigator of the quarrel or fight, or if the victim’s unlawful behavior served as the pretext for the conflict, the perpetrator cannot be held liable for murder committed for hooligan motives.

The mandatory elements of the objective side are the place where the crime was committed and the public nature of the perpetrator’s actions. However, it should be borne in mind that not every murder committed in a public place should be regarded as murder committed for hooligan motives. Murder, the infliction of grievous bodily harm, or the infliction of bodily harm of moderate severity cannot be regarded as having been committed for hooligan motives solely because the acts occurred in a public place or in the presence of bystanders if the motive for committing them was, for example, jealousy, revenge, hostility, or other motives arising from personal relationships, as well as the unlawful behavior of the victim who initiated the quarrel or fight.

If, in addition to murder committed for hooligan motives, the perpetrator committed an especially brazen violation of public order expressing clear disrespect for society, accompanied by the use of violence against citizens or the threat of such violence, as well as the destruction of or damage to another person’s property or the commission of obscene acts distinguished by exceptional cynicism, the act must be classified under subparagraph 9) of Part 2 of Article 99 and Article 293 of the Criminal Code, which provides for liability for hooliganism.

If, in committing the murder of one person for hooligan motives, the perpetrator intentionally caused grievous bodily harm or bodily harm of moderate severity to other persons, the acts as a whole should be classified cumulatively as crimes under subparagraph 9) of Part 2 of Article 99 of the Criminal Code and the corresponding articles of the Criminal Code providing for liability for causing harm to health, with the qualifying element provided for by those articles—commission for hooligan motives—being specified.

A victim of a hooligan may be not only a random passerby but also an acquaintance or relative, provided that the murder was based not on personal hostility but on hooligan motives, for example, the desire to use an insignificant pretext to attack the victim.

Hooligan acts committed both before and after a murder for hooligan motives, and not connected with it by a single intent, must be independently classified under the relevant part of Article 293 of the Criminal Code.

Murder Committed for the Purpose of Concealing Another Crime or Facilitating Its Commission, or Connected with Rape or Violent Acts of a Sexual Nature (Subparagraph 10) of Part 2 of Article 99 of the Criminal Code)

Subparagraph 10) of Part 2 of Article 99 of the Criminal Code provides for liability for two independent types of murder: a) murder committed for the purpose of concealing another crime or facilitating its commission; b) murder connected with rape or violent acts of a sexual nature.

Liability for the first type arises where death is caused for the purpose of concealing another crime committed previously, or a crime that the perpetrator intends to commit in the future, or facilitating its commission.

When committing this crime, the perpetrator pursues the objective of completely concealing a previously committed crime or circumstances affecting the classification of the crime and the measure of punishment. In the case of murder committed for the purpose of facilitating another crime, the perpetrator may commit the act either before the planned crime or in the course of its commission.

For the classification of the perpetrator’s actions under subparagraph 10) of Part 2 of Article 99 of the Criminal Code, it is not necessary for the perpetrator to achieve the intended objective as a result of the murder—that is, to conceal another crime or facilitate its commission.

Murder may be classified as having been committed for the purpose of concealing another crime or facilitating its commission where the motive for committing it was the desire, by killing the victim, to facilitate the commission of a new crime or conceal a crime previously committed by the perpetrator of the murder or another person, of which the victim was aware. It is irrelevant whether the crime being concealed was committed against the victim themselves or against other persons, whether it belongs to the category of intentional, serious, or negligent crimes, or whether the perpetrator achieved the intended objective as a result of the murder. Murder for the purpose of concealing another crime may occur not only where that crime has not yet been reported to the relevant authorities, but also where a report of the crime has already been submitted but the perpetrator was unaware of this.

In the case of the murder of a person who has already reported to the relevant authorities the criminal intentions known to them or a crime already committed, the act should be classified under subparagraph 2) of Part 2 of Article 99 of the Criminal Code as murder of a person in connection with the performance of their public duty.

If the perpetrator murdered a victim who was performing their professional activities or public or official duty for the purpose of facilitating another crime or concealing it, the act must be classified under subparagraphs 2) and 10) of Part 2 of Article 99 of the Criminal Code.

Paragraph 16 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan “On the Classification of Certain Criminal Offenses Against Human Life and Health” states: “Murder motivated by the desire, through depriving the victim of life, to facilitate the commission of a new crime or conceal a crime previously committed by the perpetrator of the murder or another person must be classified under subparagraph 10) of Part 2 of Article 99 of the Criminal Code and the provision of criminal law providing for liability for the crime committed by the perpetrator before or after the murder in implementation of their intent. When establishing the said motive for murder, it is irrelevant whether the crime being concealed or the crime intended to be committed was directed against the victim themselves or other persons, which category of severity the crime belongs to, the time and method of commission of these crimes, whether the perpetrator of the murder themselves or other persons committed the crime being concealed or intend to commit a new crime after the murder, whether a report of the concealed crime was submitted to the relevant authorities, or whether the perpetrator achieved the intended objective as a result of the murder.”

Classification of a murder as having been committed for the purpose of concealing another crime or facilitating its commission precludes the possibility of simultaneously classifying that same murder under subparagraphs 2), 8), 9), 11), and 12) of Part 2 of Article 99 of the Criminal Code, which provide for other motives and impulses.

The causing of death, if committed for the purpose of concealing a criminal misdemeanor or facilitating its commission, cannot be classified under the element provided for in subparagraph 10) of Part 2 of Article 99 of the Criminal Code, since this qualifying element may apply only to murder committed for the purpose of concealing another crime or facilitating its commission.

Murder connected with rape or violent acts of a sexual nature means the intentional infliction of death on the victim, whether female or male, committed during an attempt to commit the said criminal offenses or in the course of their commission.

The unlawful intentional infliction of death on the victim, whether female or male, committed in the course of rape or violent acts of a sexual nature, or an attempt to commit the said criminal offenses, as well as after the completion of the violent sexual act or violent acts of a sexual nature for the purpose of concealing the act committed or out of revenge for the resistance offered, must be classified cumulatively under subparagraph 10) of Part 2 of Article 99 and the relevant part of Articles 120 or 121 of the Criminal Code. When classifying the said actions of the perpetrators under subparagraph 10) of Part 2 of Article 99 of the Criminal Code, the body conducting the criminal proceedings must indicate all other qualifying elements established in the case, provided for by other subparagraphs of Part 2 of Article 99 of the Criminal Code and the relevant parts of Articles 120 or 121 of the Criminal Code.

The intentional infliction, during rape or violent acts of a sexual nature, or an attempt to commit the said criminal offenses, of minor or moderate harm to the victims’ health, as well as the negligent infliction of grievous harm to health or death on the victims, is covered by the disposition of Articles 120 or 121 of the Criminal Code, respectively, and does not require additional classification.

The victim of this type of murder may be either the person against whom rape or violent acts of a sexual nature were committed or other persons against whom the perpetrator uses violence in an effort to break the resistance and will of the victim.

For classification of the crime under subparagraph 10) of Part 2 of Article 99 of the Criminal Code, it is necessary to establish a connection between the murder committed and the violent sexual crime. Deprivation of life may be the result of violence used by the perpetrator of the sexual crime. It is important to establish that, while using violence, the perpetrator foresaw the possibility of the victim’s death, desired it, accepted it, or remained indifferent to its occurrence. If negligence with regard to death is established, classification under subparagraph 10) of Part 2 of Article 99 of the Criminal Code is excluded. In such cases, the crime committed by the perpetrator is covered by subparagraph 2) of Part 3-2 of Article 120 of the Criminal Code.

Murder may also be committed after the sexual crime has been completed. However, if, after committing rape or violent acts of a sexual nature, the perpetrator deprives the victim of life for motives unrelated to the sexual crime committed (not for the purpose of concealing it and not out of revenge for the resistance offered), for example, out of revenge for actions previously committed by the victim or the victim’s close relatives, the act cannot be classified under subparagraph 10) of Part 2 of Article 99 of the Criminal Code.

Murder committed in the course of rape must be distinguished from leaving a person in danger during rape. Murder is characterized by the presence of direct or indirect intent with regard to the consequence in the form of the victim’s death, whereas leaving a person in danger involves the perpetrator placing the victim in a life- or health-threatening condition in the absence of intent to kill.

Murder connected with rape must be distinguished from negligent causing of death in the course of rape. Murder is committed with direct or indirect intent with regard to the victim’s death and requires additional classification under subparagraph 10) of Part 2 of Article 99 of the Criminal Code, whereas negligent causing of death is covered by Part 4 of Article 120 of the Criminal Code.

Murder Motivated by Social, National, Racial, or Religious Hatred or Enmity, or Blood Feud (Subparagraph 11) of Part 2 of Article 99 of the Criminal Code)

Article 14 of the Constitution of the Republic of Kazakhstan guarantees that no one may be subjected to discrimination on the grounds of origin, social, official, or property status, sex, race, or nationality.

One of the guarantees of compliance with the constitutional rights of citizens of Kazakhstan is the strengthening of criminal liability for criminal acts committed on the grounds of national, racial, or religious hatred or enmity.

According to S.I. Ozhegov’s dictionary, “social” means public, relating to people’s lives and their relations in society; “nationality” means belonging to a particular nation, while a nation is a historically established, stable community of people formed in the process of developing a common territory, economic ties, literary language, cultural characteristics, and spiritual identity; “race” is a historically established group of humanity united by common hereditary physical characteristics (skin, eye, and hair color, skull shape, etc.) determined by a common origin and initial settlement; “religion” is one of the forms of social consciousness, a set of spiritual beliefs based on faith in supernatural forces and beings (gods, spirits) that are objects of worship; “hatred” is a feeling of intense hostility or malice, while “enmity” refers to relations and actions permeated by hostility and hatred (Ozhegov S.I. Dictionary of the Russian Language. Moscow, 1990).

There are more than 250 countries on Earth and several thousand peoples. There are several world religions (Buddhism, Islam, Christianity, etc.) and tens of thousands of systems of belief.

The motive for the murder under consideration is, on the one hand, the desire to emphasize the inferiority of the victim on the grounds of the victim’s belonging to a particular nationality, race, religion, or religious denomination. On the other hand, the exclusivity of a particular nationality, race, or religious denomination is emphasized. Criminal objectives may vary considerably: from aggravating interethnic relations to taking revenge for apostasy. The perpetrator causes the death of a person because that person belongs to another nationality, race, or religious denomination.

The basis for classifying the causing of death on the grounds of blood feud is a blood-related grievance. The subjects of this type of crime may only be persons belonging to those nationalities and peoples among whom this custom has been preserved. Blood revenge in connection with the murder of a relative consists of an obligation to avenge that murder and is passed down from generation to generation. These customs must be examined in each specific case in order to fully establish the circumstances of the murder. For example, a woman is outside the scope of blood feud. If she commits a murder, her closest male relative is held liable for that murder. Taking the life of a woman is considered unworthy conduct for a man.

“When classifying murder under subparagraph 11) of Part 2 of Article 99 of the Criminal Code,” states paragraph 18 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan “On the Classification of Certain Criminal Offenses Against Human Life and Health,” “evidence confirming that the perpetrator acted out of social, national, racial, or religious hatred or enmity, or on the grounds of blood feud, must be established. In particular, it is necessary to determine whether the perpetrator belongs to a population group that recognizes the custom of blood feud, whether a person had been murdered before the commission of the present crime, whether the perpetrator was related to that person, from what sources the perpetrator learned that the violent deprivation of life of their relative had been committed by the victim or the victim’s relatives, and other circumstances. Blood feud as a motive for murder serving as the basis for classification under this qualifying element must be distinguished from murder committed on the basis of personal hostility arising in connection with the prior murder of the perpetrator’s relative.”

When classifying murder committed in connection with social, national, racial, or religious hatred or enmity, it should be established that the victim’s belonging to a particular part of the population or the victim’s religious beliefs constituted the motive for committing the criminal offense. For classification of murder under subparagraph 11) of Part 2 of Article 99 of the Criminal Code, it is sufficient to establish that the hostile or hateful attitude was directed toward a specific person who became the victim of the criminal offense, or toward an indefinite group of persons belonging to another religion or nationality, or occupying a particular social position in society, to which the victim belonged.

Murder Committed for the Purpose of Using the Victim’s Organs or Tissues (Subparagraph 12) of Part 2 of Article 99 of the Criminal Code)

When classifying a murder under this element, the decisive role is played by the purpose of committing the murder. Murder is considered completed regardless of whether the perpetrator used the victim’s organs or tissues.

In specialized literature, the opinion is widespread that the organs and tissues of the murdered person are used for transplantation as donor material. However, the legislator refers not only to transplantation, which, in accordance with the Code “On Public Health and the Healthcare System,” means the transfer and engraftment of tissues and (or) organs (parts of organs) to another location in the body or into another organism, but generally to the use of organs and tissues for various purposes: in industry, in cannibalism, etc.

The act is subject to classification under subparagraph 12) of Part 2 of Article 99 of the Criminal Code in cases where the perpetrator’s intent is directed at killing the victim and the motive for committing the murder is the purpose of using the organs or tissues of the murdered person.

The subject matter of this offense may include any human organs and tissues, including those that are not objects of transplantation. This purpose presupposes an intention to use them for medical as well as other purposes (for example, cannibalism). For classification of murder under this qualifying element, it is irrelevant whether the organs and tissues of the murdered person were actually used after the murder.

The fact of removal of organs or tissues does not affect the criminal-law assessment of the murder; it is classified under subparagraph 12) of Part 2 of Article 99 of the Criminal Code even if they were not actually removed. However, if the removal of organs or tissues takes place in the course of depriving a person of life, the act, where grounds exist, should additionally be classified under subparagraph 5) of Part 2 of Article 99 of the Criminal Code; if the removal of organs or tissues takes place after the victim has been deprived of life, it should be classified cumulatively with the crime provided for in Article 314 of the Criminal Code.

If, when committing this murder, the perpetrator was guided by mercenary motives, their actions must be classified cumulatively under subparagraphs 8) and 12) of Part 2 of Article 99 of the Criminal Code. In view of the special purpose identified by the legislator, this murder may be committed only with direct (premeditated) intent.

It is necessary to distinguish intentional murder committed for the purpose of using human organs and tissues from the negligent causing of death in the course of coercing a person into having their organs and tissues removed or as a result of the forcible removal of organs and tissues from that person, liability for which is provided for, respectively, in Part 3 of Article 106 and Part 3 of Article 116 of the Criminal Code.

Murder Committed Repeatedly (Subparagraph 13) of Part 2 of Article 99 of the Criminal Code)

The qualifying element provided for in subparagraph 13) of Part 2 of Article 99 of the Criminal Code is to be applied in cases where the perpetrator has committed two or more acts provided for in Article 99 of the Criminal Code, none of which has resulted in a conviction or release from criminal liability on grounds established by law.

If a person commits several murders (except for acts provided for in Articles 100, 101, 102, and 103 of the Criminal Code) that are not united by a single intent, and the person has not been convicted of any of them, and if the limitation period for bringing criminal liability for the previous murder has not expired, all such acts, in accordance with the requirements of Part 4 of Article 12 of the Criminal Code, are subject to classification under subparagraph 13) of Part 2 of Article 99 of the Criminal Code (and, where grounds exist, under other relevant subparagraphs as well). In this case, separate classification of the first murder in chronological order under Part 1 or Part 2 of Article 99 of the Criminal Code is not required.

When a murder and an attempted murder are committed in the absence of a single intent to cause the death of two persons, the perpetrator’s actions are subject to classification taking into account the explanation contained in the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated December 25, 2006, “On the Classification of Repetition and Aggregation of Criminal Offenses.” Thus, paragraph 19 of the said Resolution states: “Where a person commits completed criminal offenses and criminal offenses interrupted at one stage or another of their commission, they cannot be classified under a single article of the Criminal Code. In such cases, the unfinished criminal offense is classified under the relevant part of Article 24 of the Criminal Code and the article (part of the article) of the Special Part of the Criminal Code, while the completed criminal offense is classified under the article of the Criminal Code providing for liability for that criminal offense.”

Repeated murder must be distinguished from the murder of two or more persons by reference to the subjective element of the criminal offense: if each of the murders constituting repetition was covered by an independent intent, the acts are subject to classification under subparagraph 13) of Part 2 of Article 99 of the Criminal Code; where the perpetrator’s intent was unified and initially directed at the intentional unlawful deprivation of life of two or more persons, the acts should be classified under subparagraph 1) of Part 2 of Article 99 of the Criminal Code.

Organizers, instigators, and accomplices to murder are liable under subparagraph 13) of Part 2 of Article 99 of the Criminal Code only in cases where they were knowingly aware of circumstances relating to the perpetrator’s repeated commission of murder.

Murder of a Person Knowingly Known to Be a Minor (Subparagraph 14) of Part 2 of Article 99 of the Criminal Code)

For classification of murder under subparagraph 14) of Part 2 of Article 99 of the Criminal Code, it is necessary to establish that, before committing the criminal offense, the perpetrator was aware that the victim was under the age of majority. If the perpetrator was mistaken or did not know that the victim was a minor, the perpetrator’s actions should be classified under Part 1 of Article 99 of the Criminal Code, provided that there are no other qualifying elements provided for in Part 2 of Article 99 of the Criminal Code.

Murder Committed by a Criminal Group, or in a State of Emergency or During Mass Riots (Subparagraph 15) of Part 2 of Article 99 of the Criminal Code)

According to subparagraph 24) of Article 3 of the Criminal Code, a criminal group means an organized group, criminal organization, criminal community, transnational organized group, transnational criminal organization, transnational criminal community, terrorist group, extremist group, gang, or illegal paramilitary formation.

See the definitions of these concepts in subparagraphs 36), 25), 23), 35), 34), 33), 40), 7), and 18) of Article 3 of the Criminal Code.

In accordance with Part 4 of Article 31 of the Criminal Code, a person who creates a criminal group or leads it is subject to criminal liability for organizing the criminal group and leading it in cases provided for by the relevant articles of the Special Part of the Criminal Code, as well as for all crimes committed by the criminal group, provided that they were covered by that person’s intent.

Other members of the criminal group are criminally liable for participating in it in cases provided for by the relevant articles of the Special Part of the Criminal Code, as well as for crimes in the preparation or commission of which they participated.

Paragraph 13 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan “On the Classification of Certain Criminal Offenses Against Human Life and Health” states: “A murder should be recognized as having been committed by a criminal group if it was committed by a stable group of persons who had united in advance for the commission of one or more criminal offenses. In this case, the organizer and leader of the criminal group are liable both for creating the criminal group and leading it, while its members are liable for participating in the criminal group under the relevant parts of Articles 257, 262, 263, 264, 265, 267, and 268 of the Criminal Code, depending on the form of the criminal group, as well as for murder under subparagraph 15) of Part 2 of Article 99 of the Criminal Code, in the commission of which each of them directly participated. At the same time, the organizer and leader of the criminal group are liable cumulatively under the above-mentioned articles of criminal law even if the murder committed by other members of the criminal group was covered by their intent.”

Murder committed in a state of emergency or during mass riots poses an increased public danger, since it is committed intentionally in extreme situations caused by natural, technological, or social factors.

In accordance with 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 that has developed in a particular territory as a result of an accident, fire, harmful effects of hazardous production factors, a dangerous natural phenomenon, or a disaster.

An accident is the destruction of buildings, structures and (or) technical devices, an uncontrolled explosion and (or) the release of hazardous substances.

A fire is uncontrolled combustion that creates a threat to, or causes harm to, human life and health, material damage to individuals and legal entities, or damage to the interests of society and the state.

A hazardous production factor is a physical phenomenon arising from accidents or incidents at hazardous production facilities and causing harm (damage) to individuals and legal entities or the environment.

In accordance with the Law of the Republic of Kazakhstan dated February 8, 2003, “On the State of Emergency,” a social emergency situation means an emergency situation caused by the emergence in a particular territory of contradictions and conflicts in the sphere of social relations that may result, or have resulted, in human casualties, harm to health, significant property damage, or disruption of the living conditions of the population.

Paragraph 20-2 of the above-mentioned Regulatory Resolution states: “According to subparagraph 2) of Article 4 of the Law of the Republic of Kazakhstan dated February 8, 2003, ‘On the State of Emergency,’ one of the circumstances serving as grounds for introducing a state of emergency is an emergency situation caused by an epidemic. The existence of an emergency situation in the Republic of Kazakhstan in connection with the World Health Organization’s declaration of the new coronavirus COVID-19 as a pandemic was recognized by Decree of the President of the Republic of Kazakhstan No. 285 dated March 15, 2020, ‘On the Introduction of a State of Emergency in the Republic of Kazakhstan,’ and Decrees of the President of the Republic of Kazakhstan No. 306 dated April 14, 2020, and No. 310 dated April 29, 2020, ‘On the Extension of the State of Emergency.’

There are no other regulatory legal acts concerning the existence of an emergency situation in the Republic of Kazakhstan in connection with the epidemic.

In this regard, acts committed during the period from 08:00 on March 16, 2020, to 00:00 on May 11, 2020, that is, during the period when the state of emergency introduced by Decrees of the President of the Republic of Kazakhstan No. 285 dated March 15, 2020, No. 306 dated April 14, 2020, and No. 310 dated April 29, 2020, was in force throughout the territory of the Republic of Kazakhstan, are subject to classification under subparagraph 15) of Part 2 of Article 99 of the Criminal Code on the grounds of murder committed in a state of emergency.”

Murder committed during mass riots also falls under subparagraph 15) of Part 2 of Article 99 of the Criminal Code. In this regard, it should be borne in mind that the perpetrator’s liability arises cumulatively for the crimes under subparagraph 15) of Part 2 of Article 99 of the Criminal Code and Article 272 of the Criminal Code.

By the Law of the Republic of Kazakhstan dated December 27, 2019, “On Amendments and Additions to Certain Legislative Acts of the Republic of Kazakhstan on Issues of Improving Criminal and Criminal Procedure Legislation and Strengthening the Protection of Individual Rights,” Article 99 of the Criminal Code was supplemented with Part 3, which reads as follows:

“3. Murder of a minor child shall be punishable by imprisonment for a term of twenty years, with lifelong deprivation of the right to hold certain positions or engage in certain activities, or by life imprisonment, with or without confiscation of property.”

The term “minor children” refers to persons who have not reached the age of 14. Before the introduction of Part 3 of Article 99 of the Criminal Code, the murder of a minor child was regarded as the murder of a person knowingly in a helpless condition and was classified under subparagraph 3) of Part 2 of Article 99 of the Criminal Code.

For classification under Part 3 of the commented article as the murder of a minor child, it is irrelevant whether the perpetrator knew that the person was a minor child, since this provision does not refer to “knowledge.” Consequently, this case involves objective imputation.

The inconsistency in the legislator’s position lies in the fact that, for classification under subparagraph 14) of Part 2 of Article 99 of the Criminal Code as the murder of a minor, the element of “knowledge” is required. How can the legislator’s position be understood when, in one crime (in this case, murder), “knowledge” is required to establish minority, but is not required to establish that the victim is a minor child? Unfortunately, the legislator adopts a contradictory position when formulating qualifying elements in relation to other criminal offenses as well.

The murder of a minor child, including under the circumstances specified in the subparagraphs of Part 2 of Article 99 of the Criminal Code, is subject to classification only under Part 3 of Article 99 of the Criminal Code.

The intentional murder of a minor child and another person who was not a minor child, committed with a single intent, should be classified cumulatively under Part 3 of Article 99 and subparagraph 1) of Part 2 of Article 99 of the Criminal Code. The murder of a minor child and a person who is not a minor child, where each murder was committed with an independent intent, should be classified as a combination of crimes. In this case, the element of repetition is imputed when classifying the act under Part 2 of Article 99 of the Criminal Code if that act was committed after the murder of the minor child.

In accordance with the provision on the retroactive effect of criminal law (Part 3 of Article 6 of the Criminal Code), the murder of a minor child committed before January 11, 2020, is subject to classification under subparagraph 14) of Part 2 of Article 99 of the Criminal Code (paragraph 20-3 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan).

The acts provided for in Parts 1, 2, and 3 of Article 99 of the Criminal Code are classified as especially serious crimes.

Commentary (2021) to 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 Worker of the Ministry of Internal Affairs of the Republic of Kazakhstan.