Torture of a Woman Whose Pregnancy Is Known to the Perpetrator

Article 110 of the Criminal Code of the Republic of Kazakhstan provides for criminal liability for torture.

Part One of Article 110 of the Criminal Code establishes liability for causing physical or mental suffering through violent acts committed with particular cruelty, humiliation, or for the purpose of inflicting torment on the victim, provided that the act does not result in serious or moderately serious harm to health.

Part Two provides for an aggravated offence. In particular, Paragraph 3 of Part Two establishes increased liability for the same act committed:

against a woman whose pregnancy is known to the perpetrator.

Under the current version of Article 110 of the Criminal Code of the Republic of Kazakhstan, the sanction under Part Two provides for imprisonment for a term of four to seven years. (Law and Legal Practice)

Consequently, the act under consideration does not constitute a separate, new method of torture, but rather an aggravated form of the principal offence, in which the victim’s special status—her pregnancy—constitutes an aggravating circumstance for legal qualification.

For qualification under Paragraph 3 of Part Two of Article 110 of the Criminal Code, the following circumstances must be established cumulatively:

1. The existence of violent acts;
2. The infliction of physical and/or mental suffering on the victim;
3. Particular cruelty, humiliation, or the purpose of inflicting torment;
4. The absence of serious or moderately serious harm to health as a consequence of the offence under Article 110 itself;
5. The victim’s pregnancy at the time the act was committed;
6. The perpetrator’s awareness of the pregnancy;
7. The intentional nature of the relevant acts.

The last two circumstances are of particular importance.

2. What Does “Whose Pregnancy Is Known to the Perpetrator” Mean?

The wording “known to the perpetrator” means that the objective fact of pregnancy alone is insufficient.

It must be established that the person knew about the pregnancy or was aware of it with a sufficient degree of certainty at the time the torture was committed.

The following may be used for this purpose:

• Direct notification by the victim;
• Correspondence;
• Audio and video recordings;
• Messages sent to relatives;
• Medical documents known to the perpetrator;
• Joint visits to a medical institution;
• Notifications concerning registration for prenatal care;
• Information about previous medical consultations;
• Photographs and video recordings in which the state of pregnancy could objectively have been visible;
• Witness testimony;
• Information obtained from a telephone;
• Electronic correspondence;
• Messages on social media;
• The accused’s own admission;
• Other evidence.

The temporal connection is particularly important: it must be proven not merely that the accused knew about the pregnancy at some point, but that such knowledge existed before or at the time of the specific violent acts in question.

A similar approach by the Supreme Court can be observed in its interpretation of the qualifying element of knowing awareness of pregnancy in crimes against life: the Supreme Court emphasizes the need to establish that the perpetrator knew about the pregnancy at the time the crime was committed. The duration of the pregnancy, in itself, is not decisive in determining whether this qualifying element is present. (Law and Legal Practice)

For Article 110, this means the following.

Example 1

A man knows from the woman that she is pregnant. Several days later, he systematically strikes her, pushes her, twists her arms, and causes her physical suffering.

If the elements of torture are proven, awareness of the pregnancy may be confirmed directly by the victim’s notification and by correspondence.

Example 2

The woman is indeed pregnant, but the accused claims that he did not know about it.

The fact of pregnancy alone does not resolve the issue of qualification under Paragraph 3 of Part Two of Article 110 of the Criminal Code.

The criminal prosecution authority must additionally prove the element of “knowing awareness.”

Example 3

The accused saw a medical document confirming the pregnancy and subsequently committed acts of violence.

This may constitute one of the strongest pieces of evidence that the accused knew about the pregnancy.

3. Pregnancy Must Not Automatically Replace Proof of the Elements of Torture

It is very important to distinguish between two questions:

a) Was the victim pregnant?

b) Was the act committed against her specifically an act of torture?

Pregnancy does not transform every act causing physical pain into an offence under Article 110.

For example, a single blow, in the absence of the necessary elements of torture, may require a different legal qualification.

For Article 110 to apply, it is necessary to establish the specific method of conduct provided for in its disposition: violent acts, the infliction of physical or mental suffering, particular cruelty, humiliation, or the purpose of inflicting torment.

The Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated May 11, 2007, No. 1, “On the Qualification of Certain Criminal Offences Against Human Life and Health,” emphasizes the need to establish the form of guilt, motive, purpose, method, circumstances, stage of commission of the act, and severity of the consequences. The conclusions must be substantiated by admissible, relevant, and reliable evidence. (Law and Legal Practice)

4. Object of Criminal-Law Protection

The immediate object is a person’s health and physical and mental inviolability.

In the aggravated form of the offence, the victim’s particular vulnerability arising from pregnancy is also taken into account.

However, from a legal standpoint, this does not mean that the fetus becomes an independent victim under Article 110 of the Criminal Code.

The victim under this offence is the pregnant woman.

If additional consequences arise as a result of violent acts, for example:

• Termination of pregnancy;
• Serious harm to health;
• Moderately serious harm to health;
• Death;

the legal qualification must be reassessed.

It is particularly important that Part One of Article 110 expressly excludes the application of this provision where the act has resulted in serious or moderately serious harm to health. (Law and Legal Practice)

Therefore, the infliction of more serious harm may lead to qualification under another article of the Criminal Code or under the rules governing the aggregate of criminal offences, depending on the specific circumstances.

5. Particular Cruelty, Humiliation, and the Purpose of Inflicting Torment

This is one of the central issues concerning the elements of the offence.

Torture should not automatically be equated with the infliction of multiple blows.

The following are of key importance:

• The nature of the acts;
• Their duration;
• Their intensity;
• Their repetition;
• The method of inflicting harm;
• The victim’s condition;
• The circumstances in which the acts were committed;
• The perpetrator’s mental attitude;
• The direction of the conduct toward causing torment.

In its regulatory resolution concerning crimes against life and health, the Supreme Court requires the form of guilt, motive, purpose, method, and circumstances of the crime to be established. (Law and Legal Practice)

In another regulatory resolution of the Supreme Court of the Republic of Kazakhstan, concerning the qualification of violent acts of a sexual nature, particular cruelty is explained through humiliation, mockery, torture, and the intentional infliction of bodily injuries for the purpose of causing pain, torment, and suffering. This concerns situations in which the perpetrator wishes to cause torment or knowingly allows physical or moral suffering to occur. (Law and Legal Practice)

These explanations may be used as an analogical point of reference when clarifying the meaning of the concept of particular cruelty, although the specific legal qualification must be made under Article 110 of the Criminal Code.

6. Distinguishing Torture from the Infliction of Harm to Health

A practically important distinction is as follows:

Article 110 of the Criminal Code

The main focus is on causing physical or mental suffering through violent acts, accompanied by the relevant method and purpose.

Crimes against health

The main focus is on the result in the form of harm to health of a particular degree of severity.

If violent acts result in serious or moderately serious harm to health, the issue arises of qualification under the relevant article concerning offences against health rather than under Article 110.

The Supreme Court expressly states that the severity of harm to health is established through a forensic medical examination, and that the expert’s conclusions must be examined and assessed together with the other evidence. (Law and Legal Practice)

7. Particular Importance of Pregnancy in Establishing Causation

If, as a result of violence:

• The pregnancy is terminated;
• A threat of termination of pregnancy arises;
• Pregnancy complications develop;
• Hospitalization becomes necessary;
• An illness develops;
• Treatment becomes necessary;
• Psychological consequences arise;

the investigation must establish a causal relationship between the accused’s actions and the consequences.

For example, the mere fact that a pregnancy was terminated after a conflict does not automatically mean that the termination was caused by the accused’s actions.

Establishing a medical causal relationship may require:

• A forensic medical examination;
• Medical documentation;
• An obstetric and gynecological examination;
• Medical records;
• Ultrasound results;
• Emergency medical service records;
• The history of the pregnancy;
• Medical information predating the incident;
• An expert opinion concerning the mechanism by which the injuries were sustained.

8. Mandatory Forensic Examination

Article 271 of the Criminal Procedure Code of the Republic of Kazakhstan provides for the mandatory appointment of an expert examination where it is necessary to establish the nature and degree of severity of harm to health. An expert examination is also mandatory in other cases provided for by law. (Law and Legal Practice)

In cases of this category, it is advisable to distinguish at least two groups of expert questions.

First group

What harm to health was caused to the victim?

Second group

Is there a causal relationship between the specific actions of the accused and the identified consequences?

In cases involving pregnancy, the participation of a specialist in the relevant medical field may be necessary.

Where pregnancy complications are present, alternative medical causes must be ruled out.

9. Evidence

Under Article 125 of the Criminal Procedure Code, each piece of evidence is assessed in terms of:

• Relevance;
• Admissibility;
• Reliability.

All evidence taken together must be sufficient to resolve the criminal case. (Law and Legal Practice)

For the offence under consideration, the body of evidence may conditionally be divided into seven groups.

9.1. Evidence of the Fact of Violence

For example:

• Photographs;
• Video recordings;
• Surveillance camera footage;
• Intercom recordings;
• Witness testimony;
• Correspondence;
• Audio recordings;
• Objects;
• Clothing;
• Traces of blood;
• Medical documents;
• Inspection records.

9.2. Evidence of Systematic Conduct

If the torture continued over an extended period:

• Previous complaints;
• Reports to the police;
• Calls to emergency number 102;
• Visits to medical institutions;
• Messages sent to relatives;
• Photographs of previous injuries;
• Correspondence;
• Testimony from neighbours;
• Information concerning previous conflicts.

At the same time, not every preceding domestic incident may automatically be considered a proven episode of a crime. Each episode must be established in accordance with the applicable procedural requirements.

9.3. Evidence of Mental Suffering

This is particularly important because Article 110 expressly provides for the infliction of physical or mental suffering.

Evidence may include:

• The victim’s testimony;
• Testimony from close relatives;
• Medical consultations;
• Specialists’ conclusions;
• Information concerning sleep disturbances;
• Anxiety states;
• The need for psychological assistance;
• Changes in behaviour.

However, psychological consequences alone do not replace the need to prove the remaining elements of the offence.

9.4. Evidence of Pregnancy

• Medical records;
• A medical certificate;
• Ultrasound results;
• Test results;
• A doctor’s conclusion;
• Information concerning registration for prenatal care;
• Electronic medical records;
• Testimony from medical professionals.

9.5. Evidence of the Accused’s Knowledge

This is a separate category of evidence.

For example:

“I am pregnant, do not touch me.”

If such a statement is contained in an audio recording or correspondence, it may be of substantial importance.

The following are also important:

• Messages concerning the pregnancy;
• Ultrasound images;
• Joint visits to a doctor;
• Discussions about the unborn child;
• Correspondence with the accused’s relatives;
• The purchase of medication;
• Preparations for the birth of the child.

9.6. Evidence of Purpose

The investigation must establish the direction and purpose of the actions.

The accused’s statements, threats, humiliation, repeated acts, and the nature of the conduct may indicate a desire to cause suffering.

9.7. Evidence of the Absence of a More Serious Offence

Since Part One of Article 110 is limited to cases in which no serious or moderately serious harm to health has been caused, the qualification must take into account the expert’s conclusion.

10. Inadmissible Evidence

The Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated December 28, 2009, No. 7, draws particular attention to the prohibition of torture and cruel or degrading treatment.

The Supreme Court explains that a violation of the requirements of criminal procedure law in the conduct of a procedural action may result in the evidence obtained being declared inadmissible. (Law and Legal Practice)

This is of particular importance in cases involving violence.

If the accused provides a confession as a result of unlawful pressure, such a confession must not serve as the basis for the accusation unless the requirements governing the admissibility of evidence have been complied with.

 11. Distinguishing Article 110 from Article 146 of the Criminal Code of the Republic of Kazakhstan — Torture

This is a fundamentally important issue.

Regulatory Resolution No. 7 of the Supreme Court of the Republic of Kazakhstan dated December 28, 2009, expressly indicates the need to distinguish Article 146 of the Criminal Code from the aggravated form of torture (torment).

If all the elements of torture provided for in Article 146 of the Criminal Code are present, the act is covered by the special provision on torture, and additional qualification as torment is not required. (Law and Law)

However, in an ordinary situation involving domestic or other violence between private individuals, the absence of a special subject and a specific purpose of torture generally does not permit the act to be automatically classified under Article 146.

Thus:

Article 110 — the general offence of torment;

Article 146 — the special offence of torture, where the special subject and purpose prescribed by law are present.

12. Investigative Jurisdiction

Investigative jurisdiction must be distinguished from trial jurisdiction.

At the pre-trial stage, the issue is which criminal prosecution authority investigates the criminal offence.

As a general rule, the investigation of such crimes falls within the competence of criminal prosecution authorities, primarily the internal affairs authorities, taking into account the provisions of the Criminal Procedure Code concerning investigative jurisdiction.

If the victim applies directly to the police, the report must be registered in accordance with the procedure established by the Criminal Procedure Code, after which a procedural decision is made.

If the investigation is not conducted properly, the victim and her representative have the right to use the procedural mechanisms for appealing against the actions or inaction of the investigator and prosecutor.

Article 99 of the Criminal Procedure Code allows participants in criminal proceedings to submit motions for the performance of procedural actions or the adoption of procedural decisions. (Law and Law)

13. Trial Jurisdiction

Article 306 of the Criminal Procedure Code of the Republic of Kazakhstan provides that district courts and courts equated to them are courts of first instance and hear all criminal cases except those falling within the jurisdiction of specialized courts. (Law and Law)

Therefore, a criminal case under subparagraph 3) of paragraph 2 of Article 110 of the Criminal Code, in the absence of special grounds determining trial jurisdiction, is heard by:

a district court or a court equated to it, acting as a court of first instance.

In Almaty, this means the district court to which the case is assigned under the territorial jurisdiction rules of the Criminal Procedure Code.

14. Territorial Jurisdiction

When determining the specific court, the rules governing the territorial jurisdiction of criminal cases must be taken into account.

The principal reference point is the place where the criminal offence was committed.

Where there are several episodes or several places where the crime was committed, the special rules of the Criminal Procedure Code apply.

Therefore, in a particular case, it is necessary to establish:

• the location of the first episode;
• the location of the last episode;
• the place where the crime was completed;
• the place where the investigation is being conducted;
• whether any criminal cases have been joined.

15. Jurisdiction over a Civil Claim

In terms of terminology, it would be more accurate here to refer not so much to “jurisdiction” as to the procedural form for considering a claim for compensation for harm.

Article 166 of the Criminal Procedure Code provides for the possibility of considering civil claims by individuals and legal entities in criminal proceedings for compensation for:

• pecuniary damage;
• non-pecuniary damage;
• medical treatment expenses;
• funeral expenses;
• insurance payments;
• allowances;
• pensions;
• expenses associated with participation in an inquiry, preliminary investigation, and court proceedings;
• representation expenses. (Law and Law)

Thus, a pregnant woman who is a victim may submit claims within the criminal proceedings, for example, for:

1. compensation for non-pecuniary damage;
2. reimbursement of medical treatment expenses;
3. reimbursement of other expenses supported by documentary evidence;
4. reimbursement of representation expenses within the limits prescribed by law.

16. When a Civil Claim Is Filed

A civil claim in criminal proceedings may be filed from the commencement of the pre-trial investigation until the conclusion of the judicial investigation.

This is also confirmed by the regulatory resolution of the Supreme Court concerning compensation for harm caused by unlawful actions of bodies conducting criminal proceedings. (Law and Law)

Article 166 of the Criminal Procedure Code additionally provides that if a person did not file a civil claim in criminal proceedings, withdrew it, or the court left it without consideration, that person may, in the cases prescribed by law, apply under the procedure for civil proceedings. (Law and Law)

17. State Duty

Two situations must be fundamentally distinguished here.

17.1. A Claim Within Criminal Proceedings

When a civil claim is filed directly within a criminal case, the victim is not required to convert it into separate civil proceedings involving a separate initial application procedure before a civil court.

Article 166 of the Criminal Procedure Code expressly provides for the consideration of civil claims in criminal proceedings. (Law and Law)

Therefore, claims for compensation for harm should be submitted as a civil claim within the criminal proceedings.

17.2. Subsequent Separate Civil Proceedings

If the civil claim was not considered in the criminal case and the victim applies separately to a civil court, the rules of the Civil Procedure Code and the legislation on state duty apply.

According to the available materials on zakonpravo.kz, the rate for non-pecuniary claims is 0.5 MCI, while pecuniary claims are subject to a duty depending on the value of the claim. (Law and Law)

At the same time, the current version of the tax legislation must be checked as of the date on which the particular separate claim is filed.

Of particular importance is the exemption from state duty for claims seeking compensation for harm caused to health, as provided for by tax legislation in the relevant cases. (Law and Law)

18. Pre-Trial Procedure

For classification under Article 110 of the Criminal Code of the Republic of Kazakhstan, prior submission of a claim to the perpetrator is not a condition for initiating criminal prosecution.

A pregnant woman must not be told:

“First send a claim to the perpetrator, and then apply to the police.”

This is not a civil contractual dispute.

A report of a crime is considered in accordance with criminal procedural legislation.

However, if the victim submits an independent civil claim after the criminal proceedings have been completed, the rules of civil procedure apply.

19. Conciliation Procedures

The issue of conciliation requires very careful analysis.

Article 68 of the Criminal Code provides for exemption from criminal liability in connection with conciliation in the cases prescribed by law.

For criminal offences of minor or medium gravity, the legislature establishes the corresponding general mechanism.

Furthermore, paragraph 2 of Article 68 provides for a special possibility of exempting certain persons who have committed a serious crime for the first time, provided that the conditions prescribed by law are met. Such persons include, in particular, pregnant women, women who have or are raising a minor child, and other categories specified in the article. (Law and Law)

A fundamental conclusion must be drawn here:

the pregnancy of the victim and the pregnancy of the accused are legally different circumstances.

If the victim is pregnant, this in itself does not mean that the application of Article 68 is prohibited.

If the accused herself belongs to a special category provided for in paragraph 2 of Article 68, the issue must be considered separately.

20. Exception for Torture

Paragraph 4 of Article 68 of the Criminal Code expressly excludes the application of the conciliation mechanism to persons who have committed torture, that is, crimes provided for in Article 146 of the Criminal Code. (Law and Law)

However, this prohibition cannot automatically be extended to Article 110.

If the act is classified specifically under subparagraph 3) of paragraph 2 of Article 110 and the elements of Article 146 are absent, the possibility of applying Article 68 under the general rules must be analysed.

If, however, the investigation establishes the elements of torture and Article 146 is applied, the special exception applies.

21. Supreme Court Practice on Conciliation

The regulatory resolution of the Supreme Court of the Republic of Kazakhstan concerning Article 68 of the Criminal Code emphasizes several important points.

Conciliation must be:

• voluntary;
• free;
• genuine.

Compensation for harm must take place before the decision to exempt a person from criminal liability is made.

If there is a dispute between the parties regarding the amount of compensation for harm, this may indicate that conciliation has not actually been achieved.

The victim's will must be freely expressed and cannot be obtained through pressure. (Law and Law)

This is particularly important in domestic violence cases.

For example, if the accused:

• threatens the victim;
• is financially dependent on her;
• continues to live with her;
• monitors her telephone;
• controls her money;
• threatens the child;
• forces her to write a statement of conciliation,

the investigation and the court must assess whether such a statement was made voluntarily.

22. Participants in Criminal Proceedings

A typical case involves the following participants:

22.1. The Victim

The pregnant woman against whom the crime was committed.

22.2. The Suspect

A person in respect of whom there are grounds for suspicion prescribed by law.

22.3. The Accused

After acquiring the corresponding procedural status.

22.4. Defence Counsel

The lawyer representing the suspect/accused.

22.5. The Prosecutor

Performs the functions of public prosecution and supervision within the limits of their authority.

22.6. The Investigator/Inquiry Officer

Conducts the pre-trial investigation.

22.7. The Victim's Representative

The victim may exercise her rights personally or through a representative.

22.8. The Civil Claimant

Where a claim for compensation for harm has been submitted.

22.9. The Civil Defendant

Where the grounds prescribed by law exist.

22.10. The Expert

Primarily, a forensic medical expert.

22.11. Specialists

For example, medical specialists, psychologists, and other persons, depending on the circumstances.

22.12. Witnesses

Persons who have knowledge of the circumstances of the case.

23. Rights of the Victim

The victim has the right to participate actively in the evidentiary process.

The following are particularly important:

• submission of evidence;
• filing motions;
• participation in investigative actions;
• receipt of procedural documents;
• appealing decisions;
• filing a civil claim;
• participation in court proceedings;
• participation of a representative;
• receipt of a copy of the judgment;
• appealing a judicial act in the cases prescribed by law.

The materials on zakonpravo.kz concerning practical motions submitted by lawyers also confirm the use of Articles 71 and 99 of the Criminal Procedure Code to obtain procedural documents and submit motions for the conduct of necessary investigative actions. (Law and Law)

24. Motions of the Victim's Lawyer

In such a case, it is advisable for the lawyer to consider submitting motions concerning:

1. recognition of the person as a victim;
2. inclusion of medical documents in the case file;
3. appointment of a forensic medical examination;
4. appointment of an additional examination;
5. appointment of a comprehensive examination;
6. requesting medical records;
7. requesting camera recordings;
8. seizure of correspondence;
9. examination of the telephone;
10. questioning of witnesses;
11. inclusion of audio recordings in the case file;
12. inclusion of photographs in the case file;
13. establishing the whereabouts of the accused;
14. selection of a preventive measure;
15. imposition of a prohibition on approaching the victim;
16. application of safety measures for the victim;
17. recognition as a civil claimant;
18. securing the civil claim.

25. Measures of Procedural Compulsion

Article 155 of the Criminal Procedure Code provides for other measures of procedural compulsion, including:

• an undertaking to appear;
• compulsory attendance;
• temporary suspension from office;
• seizure of property;
• a prohibition on approaching the victim.

Separate procedural measures are also provided for victims and witnesses in the cases prescribed by law. (Law and Law)

In a domestic violence case, the prohibition on approaching the victim is of particular importance.

Its significance may extend beyond maintaining procedural discipline and may also relate to the victim's actual safety.

26. Detention as a Preventive Measure

Article 136 of the Criminal Procedure Code contains special provisions concerning the application of preventive measures.

In particular, paragraph 2 of Article 136 expressly includes Article 110 of the Criminal Code in the list of criminal offences for which detention may be applied on the grounds of the seriousness of the crime committed and/or the classification of the criminal offence. (Law and Law)

This is a significant procedural circumstance.

However, this does not mean automatic detention.

The criminal prosecution authority and the court must take into account the grounds prescribed by the Criminal Procedure Code and the necessity of the specific measure.

The general principle is to consider the possibility of applying a less restrictive preventive measure if it can ensure the objectives of the criminal proceedings. (Law and Law)

27. When Detention Can Be Particularly Well-Justified

From the perspective of procedural analysis, the following circumstances may be significant:

• threats against the victim;
• repeated violence;
• attempts to exert influence on the victim;
• attempts to destroy evidence;
• threats against witnesses;
• violation of a previously imposed preventive measure;
• an attempt to abscond;
• absence of a permanent place of residence;
• continuation of criminal activity.

It is particularly important to document not merely the conflict itself, but the risk of further interference with the victim.

28. Law on the Prevention of Domestic Violence

If the crime was committed in the family and domestic sphere, the legislation on the prevention of domestic violence also applies.

The Law of the Republic of Kazakhstan “On the Prevention of Domestic Violence” establishes the legal, economic, social, and organizational foundations for the prevention of domestic violence. (Law and Law)

The Law is based, in particular, on the following principles:

• legality;
• guaranteeing human rights;
• inadmissibility of causing physical and/or psychological suffering;
• confidentiality;
• an individual approach;
• priority of preventive measures. (Law and Law)

29. Protective Order

The Law on the Prevention of Domestic Violence provides for a protective order.

The protective order is valid for 30 days from the moment it is served on the relevant person; violation of the order entails liability prescribed by law. (Law and Law)

Where there is a risk of repeated violence, the protective order should be considered an independent protective mechanism that does not replace the criminal investigation.

30. Special Requirements for the Conduct of the Offender

The Law also provides for the possibility of establishing special requirements for the conduct of the offender.

Such requirements may include an obligation to report periodically to the internal affairs authorities for a preventive interview. (Law and Law)

For the victim's lawyer, it is important not to limit the matter solely to the question of punishing the perpetrator.

It is also necessary to assess, in parallel, the following question:

Which measures actually prevent repeated contact and repeated violence?

31. Limitation Period for Criminal Prosecution

Article 71 of the Criminal Code establishes limitation periods.

Depending on the category of the criminal offence:

• criminal misdemeanour — 1 year;
• minor offence — 2 years;
• medium-gravity offence — 5 years;
• serious offence — 10 years;
• especially serious offence — 15 years.

The period is calculated from the date on which the criminal offence was committed until the judgment enters into legal force. (Law and Law)

Since paragraph 2 of Article 110 provides for imprisonment for a term of four to seven years, the act under consideration falls within the category of serious crimes under the general rules for categorizing offences under the Criminal Code.

Consequently, the general limitation period for bringing a person to criminal liability is 10 years, unless there are special circumstances affecting the running of the limitation period.

32. An Important Specific Feature: Article 110 and Exceptions to the Limitation Period

Article 110 must not be confused with torture under Article 146.

Article 71 of the Criminal Code separately establishes that limitation periods do not apply to persons who have committed, among other things, torture.

Therefore, if the act is ultimately classified under Article 146 of the Criminal Code, the limitation regime is fundamentally different. (Law and Law)

If, however, the classification remains under subparagraph 3) of paragraph 2 of Article 110, the relevant category of crime and the general rules of Article 71 must be applied.

33. Practice Concerning the Restoration of Time Limits

The following must be distinguished:

1. The limitation period for criminal prosecution

This is a substantive legal institution governed by Article 71 of the Criminal Code.

2. A procedural time limit

This is the time limit for performing a specific procedural action.

3. The limitation period for a civil claim

This is an institution of civil law.

4. The time limit for filing a complaint or appeal

This is a procedural time limit.

These must not be confused with one another.

34. Limitation Period for a Civil Claim

The general limitation period under Article 178 of the Civil Code is three years. (Law and Law)

However, Article 187 of the Civil Code is fundamentally important in cases involving violence.

It provides that the limitation period does not apply to:

1. claims for the protection of intangible benefits and personal non-property rights;
2. claims for compensation for harm caused to the life or health of a citizen.

At the same time, claims for compensation for harm to health filed after the expiry of the limitation period are satisfied for no more than the three years preceding the filing of the claim. (Law and Law)

35. Non-Pecuniary Damage — A Special Regime

Regulatory Resolution No. 7 of the Supreme Court of the Republic of Kazakhstan dated November 27, 2015, expressly clarifies that the limitation period does not apply to claims for compensation for non-pecuniary damage, taking Article 187 of the Civil Code into account. (Law and Law)

This is of considerable practical importance.

For example, if a victim applies for compensation for non-pecuniary damage after a significant period of time has passed, the claim cannot automatically be rejected solely by reference to the general three-year limitation period.

The legal nature of the claim must be established.

36. Restoration of a Time Limit

For a civil claim, it is first necessary to determine whether the limitation period applies at all.

If the claim falls within a category to which the limitation period does not apply, the question of “restoration of the time limit” may be legally incorrectly framed.

If the limitation period does apply, the following must be analysed:

• the moment when the person learned or should have learned of the violation;
• the identity of the offender;
• the existence of objective obstacles;
• the person's state of health;
• dependence on the perpetrator;
• minority;
• inability to apply to the court;
• documentary confirmation of the reasons for missing the time limit.

For a victim of domestic violence, objective circumstances involving dependence and threats may be particularly significant, but each such circumstance must be proven.

37. Non-Pecuniary Damage

Article 951 of the Civil Code is the basic provision governing compensation for non-pecuniary damage.

In Regulatory Resolution No. 32-NP dated October 6, 2023, the Constitutional Court noted that non-pecuniary damage consists of moral or physical suffering and that compensation for harm is an element of restoring violated rights. (Law and Law)

For the category of cases under consideration, the following may be relevant:

• physical pain;
• fear;
• humiliation;
• a feeling of helplessness;
• anxiety concerning the pregnancy;
• concern for the child;
• sleep disturbance;
• the need for medical treatment;
• the need for psychological assistance;
• changes to the usual way of life;
• fear of repeated violence.

38. Proving the Amount of Non-Pecuniary Damage

The amount of non-pecuniary compensation should not simply be linked to the number of injuries.

The court assesses the totality of the circumstances.

For a pregnant victim, the following circumstances may be particularly significant:

• the stage of pregnancy;
• the nature of the violence;
• its duration;
• the number of episodes;
• the method of inflicting the violence;
• the existence of threats;
• the presence of children;
• the need for hospitalization;
• medical consequences;
• psychological consequences;
• consequences for family life;
• the duration of recovery.

At the same time, the amount claimed does not automatically mean that the same amount will be awarded by the court.

39. Constitutional Aspect

Article 13 of the Constitution of the Republic of Kazakhstan guarantees judicial protection of rights and freedoms.

The regulatory resolution of the Supreme Court concerning the application of international treaties emphasizes that international treaties ratified by Kazakhstan take precedence over laws within the limits prescribed by the Constitution, and that provisions which do not require an additional law for their application may have direct effect. (Law and Law)

40. International Covenant on Civil and Political Rights

Kazakhstan ratified the International Covenant on Civil and Political Rights by Law No. 91 dated November 28, 2005. The Covenant entered into force for Kazakhstan on April 24, 2006. (Law and Law)

The following provisions are particularly significant for the category of cases under consideration:

• Article 2 — an effective remedy;
• Article 3 — equality of men and women;
• Article 7 — prohibition of torture and cruel, inhuman, or degrading treatment;
• Article 14 — a fair trial.

Regulatory Resolution No. 1 of the Supreme Court of the Republic of Kazakhstan dated July 10, 2008, expressly directs courts to apply the International Covenant on Civil and Political Rights when considering cases. (Law and Law)

 41. Convention on the Elimination of All Forms of Discrimination against Women

Kazakhstan has acceded to the CEDAW Convention.

The Convention requires the provision of effective legal protection for women and the adoption of appropriate legislative and other measures against discrimination. (Law and Legal Affairs)

The CEDAW Committee’s General Recommendation No. 35 on gender-based violence against women is particularly useful for legal analysis.

The CEDAW Committee considers gender-based violence to be a form of violation of women’s rights and links the State’s obligations to the need to:

• prevent;
• investigate;
• prosecute;
• punish;
• ensure reparation for harm.

(United Nations Document Repository)

42. Convention against Torture

Kazakhstan is a party to the United Nations Convention against Torture. According to the United Nations treaty database, Kazakhstan acceded to the Convention on August 26, 1998, and it entered into force for Kazakhstan on September 25, 1998.

Article 14 of the Convention establishes the right of a victim of torture to redress and fair and adequate compensation, including the means for the fullest possible rehabilitation.

At the same time, with regard to Article 110, it is important to remember the following:

Not every act of torment legally constitutes torture under Article 146 of the Criminal Code.

The Supreme Court has specifically clarified the need to distinguish between these offences. (Law and Legal Affairs)

43. Law on State Guarantees of Equal Rights and Equal Opportunities for Men and Women

The Law of the Republic of Kazakhstan “On State Guarantees of Equal Rights and Equal Opportunities for Men and Women” expressly provides for special protection of women in connection with pregnancy and childbirth.

The Law separately stipulates that measures aimed at protecting women under criminal, criminal procedure, and penal enforcement legislation are not considered discrimination. (Law and Legal Affairs)

This is important for the systematic interpretation of the qualifying element under Article 110.

44. Supreme Court case law directly concerning Article 110

In the available database on zakonpravo.kz, the following must be distinguished:

Acts directly applicable

Article 110 of the Criminal Code. (Law and Legal Affairs)

Regulatory acts clarifying the concepts of torment and violence

Regulatory Resolution No. 7 of the Supreme Court of the Republic of Kazakhstan dated December 28, 2009. (Law and Legal Affairs)

Regulatory Resolution on offences against life and health

Regulatory Resolution No. 1 of the Supreme Court of the Republic of Kazakhstan dated May 11, 2007. (Law and Legal Affairs)

Regulatory Resolution on violent acts of a sexual nature

Regulatory Resolution No. 4 of the Supreme Court of the Republic of Kazakhstan dated May 11, 2007. (Law and Legal Affairs)

These acts must be applied comprehensively.

45. Supreme Court case law on proving the severity of harm

The Supreme Court has repeatedly emphasized the need for a forensic medical examination to determine the severity of harm to health.

This is fundamental to distinguishing Article 110 from offences against health. (Law and Legal Affairs)

Consequently, the expert’s opinion must not be assessed in isolation, but together with the totality of the following evidence:

• testimony;
• medical records;
• examination reports;
• photographs;
• ambulance service records;
• witness testimony.

46. Supreme Court case law on limitation periods

A publication available on zakonpravo.kz describes a situation in which the Supreme Court overturned a judicial act because the limitation period had been applied incorrectly.

In that case, which concerned a different criminal offence, the court of first instance failed to take into account the expiration of the limitation period; the Supreme Court applied Article 71 of the Criminal Code and terminated the proceedings. (Law and Legal Affairs)

Although the case does not concern Article 110, the legal position is important as a general example:

The limitation period is a legally significant circumstance that the court is obliged to examine.

47. Supreme Court case law on non-pecuniary damage

Regulatory Resolution No. 7 of the Supreme Court dated November 27, 2015, is the key act for claims concerning non-pecuniary damage.

The Supreme Court proceeds on the basis that physical suffering includes physical pain arising as a result of violence or harm to health. (Law and Legal Affairs)

For the category of cases under consideration, this is directly applicable to the victim’s claim for compensation for non-pecuniary damage.

48. Constitutional Court case law

Regulatory Resolution No. 32-NP of the Constitutional Court of the Republic of Kazakhstan dated October 6, 2023, confirmed the constitutionality of the relevant provisions of the Civil Code and the Supreme Court’s regulatory resolution on non-pecuniary damage, while also explaining the importance of effectively restoring violated rights. (Law and Legal Affairs)

The document also notes the connection between national law and the international principle of effective reparation for victims of human rights violations.

49. Case law of courts of first instance

The available database of courts of first instance contains cases concerning related claims for compensation for non-pecuniary and pecuniary damage.

The following general practical approach emerges from these cases:

The court must establish:

1. the fact of the offence;
2. the violation of a personal non-property right;
3. the causal link;
4. fault, unless the law provides for liability irrespective of fault;
5. the existence and nature of non-pecuniary suffering;
6. the amount of compensation.

This approach is reflected in judicial materials published on zakonpravo.kz. (Law and Legal Affairs)

50. Appellate case law

When appealing a judgment under Article 110, the most promising areas for review are as follows:

For the prosecution/victim

• incomplete examination of the incidents;
• unjustified exclusion of evidence;
• incorrect assessment of the defendant’s knowledge of the pregnancy;
• disregard of medical records;
• failure to assess correspondence;
• incorrect classification under a less serious offence;
• unjustified reduction of the sentence;
• incorrect determination of the civil claim.

For the defence

• absence of evidence that the defendant knew about the pregnancy;
• absence of evidence of the purpose of inflicting suffering;
• absence of particular cruelty;
• the isolated nature of the incident;
• absence of the required consequences;
• inadmissibility of certain evidence;
• violations of the examination procedure;
• contradictions between testimony and objective evidence.

51. The distinction between a dispute over evidence and an error in legal classification

An appeal must distinguish between:

an error of fact and an error of law.

For example:

The court incorrectly established that the accused knew about the pregnancy.

This is a matter of evaluating evidence.

However:

The court found that the accused’s knowledge of the pregnancy had been established but concluded that this element was irrelevant to the legal classification.

This is an error in the application of criminal law.

Such structuring substantially increases the legal clarity of the appeal.

52. Specific features of a civil claim in criminal proceedings

Article 166 of the Criminal Procedure Code is of fundamental importance.

If the victim states:

“I request that the defendant be ordered to pay 5,000,000 tenge in compensation for non-pecuniary damage and 350,000 tenge for medical expenses,”

this may be considered simultaneously with the criminal case.

The civil claim must be proved in accordance with the rules of the Criminal Procedure Code, while the rules of civil procedural legislation may apply to matters not regulated therein, provided that they do not contradict the Criminal Procedure Code. (Law and Legal Affairs)

53. Pecuniary damage

Possible claims include:

• medication;
• examinations;
• transportation;
• hospitalization;
• medical services;
• rehabilitative treatment;
• psychological assistance;
• other expenses directly related to the consequences of the crime.

Each amount should, where possible, be supported by:

• receipts;
• contracts;
• invoices;
• prescriptions;
• medical orders;
• medical extracts;
• payment documents.

54. Legal fees

Article 166 of the Criminal Procedure Code expressly includes expenses incurred in connection with participation in criminal proceedings, including representation expenses, among the possible subject matter of a civil claim. (Law and Legal Affairs)

However, the following must be documented:

• the agreement;
• the payment;
• the scope of legal assistance provided;
• the connection between the expenses and the criminal case;
• the reasonableness and necessity of the expenses.

55. Victims’ Compensation Fund

The Law “On the Victims’ Compensation Fund” is in force in Kazakhstan.

However, caution must be exercised with regard to Article 110.

Article 6 of the Law contains a list of specific criminal offences whose victims are entitled to the relevant compensation.

The available version of Article 6 lists, in particular, certain offences against sexual inviolability, human trafficking, torture under Article 146, as well as a number of offences resulting in serious harm or death. Article 110 is not directly included in this list. (Law and Legal Affairs)

Consequently, classification under Article 110(2)(3) alone should not automatically be considered grounds for payment from the Fund.

If a change in the legal classification results in an offence falling within Article 6 of the Law, this issue must be reviewed again.

56. Amount of compensation from the Fund

Article 7 of the Law provides fixed compensation amounts in monthly calculation indices (MCI) for the categories of victims specified in Article 6. (Law and Legal Affairs)

With regard to Article 110, it is first necessary to determine whether the particular case falls within an offence covered by the Law.

57. Compulsory payment

The compensation paid to the victim must be distinguished from the compulsory payment collected from the convicted person into the Victims’ Compensation Fund.

This is not the same as a civil claim.

Civil claim:

the victim → seeks compensation for the harm suffered.

Compulsory payment:

the State → collects the amount prescribed by law into the Fund.

The legislation provides for different payment amounts depending on the category of criminal offence. (Law and Legal Affairs)

58. Possible legal classifications where pregnancy complications occur

This is one of the most complex issues.

Suppose:

the accused systematically beat a pregnant woman, as a result of which the pregnancy was terminated.

In such a case, the legal classification must not automatically be limited to Article 110(2)(3).

It is necessary to determine:

1. the causal link;
2. the degree of harm to health;
3. the mental attitude toward the consequences;
4. whether the consequences were covered by intent;
5. whether they occurred through negligence;
6. whether there is an aggregate of offences;
7. whether there is a specific provision of the Criminal Code covering the consequences.

The Supreme Court indicates that termination of pregnancy may be relevant in determining the severity of harm to health and requires an appropriate forensic medical assessment involving an obstetrician-gynaecologist. (Law and Legal Affairs)

59. Situation involving a threat of pregnancy termination

If a pregnant woman is hospitalized following violence with a diagnosis of “threatened miscarriage,” it is necessary to determine:

• whether this condition arose specifically as a result of the accused’s actions;
• the medical mechanism;
• whether similar complications existed previously;
• how directly the violence is connected to the condition that arose.

In this situation, it is particularly dangerous to build the prosecution case solely on chronological sequence:

“The violence occurred on Monday, hospitalization took place on Tuesday, therefore the consequences were caused by the violence.”

Criminal proceedings require proof of a causal link.

60. Importance of medical records

Medical records must be collected as completely as possible:

• ambulance call record;
• emergency department records;
• medical history;
• discharge summary;
• pregnancy record;
• ultrasound results;
• laboratory test results;
• medical prescriptions and orders;
• sick leave certificate;
• specialists’ opinions.

It is particularly important to ensure that the original medical records are obtained, rather than relying solely on a certificate stating the final diagnosis.

 61. Electronic Evidence

In domestic violence cases, the following often become critically important:

• WhatsApp;
• Telegram;
• SMS;
• voice messages;
• call recordings;
• photographs;
• videos;
• geolocation;
• call history;
• camera recordings.

However, the procedural requirements for obtaining and recording evidence must be observed.

Simply submitting a screenshot is not always sufficient evidence of the content of an electronic message.

It is advisable to ensure:

• identification of the device;
• identification of the account;
• date and time;
• source;
• integrity;
• a procedural record;
• expert examination, where necessary.

62. Testimony of the Victim

The victim’s testimony constitutes evidence; however, it should not be considered in isolation.

The strongest situation is when the testimony is consistent with objective data:

testimony + medical documentation + correspondence + witness + video recording.

At the same time, the absence of witnesses in itself does not mean that there is no possibility of proving the crime.

Domestic violence, by its very nature, often occurs without eyewitnesses.

63. Why the Mandatory Presence of Witnesses Cannot Be Required

Torture is often committed:

• in an apartment;
• at night;
• in an enclosed space;
• without other people present.

Therefore, the requirement:

“Show a witness to every blow”

does not correspond to the actual nature of this crime.

The issue must be resolved through the totality of admissible evidence.

64. Judicial Assessment of Contradictions

If the victim describes certain details differently at different times, it is necessary to establish:

• which contradictions are material;
• which are secondary;
• whether they were caused by stress;
• whether the testimony changed after consultation;
• whether it is corroborated by objective evidence.

Any discrepancy must not automatically be regarded as grounds for considering all testimony unreliable.

65. Knowledge and the Subjective Element

Under paragraph 3 of part 2 of Article 110, it is necessary to prove not only the objective fact of pregnancy.

It is also necessary to prove the accused’s subjective awareness of this circumstance.

From the prosecution’s perspective, the most important formula is:

the accused knew about the pregnancy + understood that the woman before him was pregnant + nevertheless intentionally committed acts of violence.

If only the following is proven:

“the woman was pregnant,”

but not:

“the accused knew about it,”

the qualifying element of “knowingly” remains unproven.

66. Possibility of Reclassification

If the court concludes that the qualifying element of pregnancy has not been proven, this does not automatically mean that no crime was committed.

Depending on the evidence, classification under part 1 of Article 110 may remain applicable.

This is fundamentally important for developing an alternative position.

For example:

the primary position of the prosecution:

paragraph 3 of part 2 of Article 110;

alternatively:

part 1 of Article 110, if the court finds that the accused’s knowledge of the pregnancy has not been proven.

At the same time, the specific reclassification must correspond to the established circumstances.

67. When Article 110 Is Not Applicable at All

Article 110 should not be applied if:

• there was no violent act;
• there was no physical or psychological suffering;
• the required intent or orientation of the conduct is absent;
• there was no particular cruelty, humiliation, or purpose of causing torment;
• other harm covered by a special criminal offence was caused;
• the acts in fact constitute another criminal offence.

68. Connection with Article 54 of the Criminal Code

Committing a criminal offence against a woman who is knowingly pregnant, where the perpetrator is aware of her pregnancy, is also provided for in the list of circumstances aggravating criminal liability and punishment. (Law and Law)

However, in a specific case, the issue of the inadmissibility of counting the same circumstance twice must be taken into account.

If pregnancy is already a mandatory qualifying element of a particular part of Article 110, the court must distinguish between:

1. using the element for legal classification;
2. its independent influence on the individualization of punishment.

This is an issue that should be expressly raised during closing arguments and in an appeal.

69. Investigation Period

When protecting the interests of the victim, it is important to monitor:

• registration of the complaint;
• commencement of the pre-trial investigation;
• investigation deadlines;
• decisions to suspend the investigation;
• resumption of the investigation;
• referral of the case to the prosecutor;
• preparation of the indictment;
• receipt of the case by the court.

In cases of unjustified delay, motions and complaints provided for by the Criminal Procedure Code must be used.

70. Challenging the Investigator’s Inaction

If the investigator:

• does not order an expert examination;
• does not question a witness;
• does not seize a video recording;
• does not request the medical record;
• does not consider a motion;
• does not recognize the person as a victim;
• does not provide a copy of a decision,

the lawyer has the right to use the mechanisms for challenging such inaction provided for by the Criminal Procedure Code.

Article 99 of the Criminal Procedure Code, concerning motions, is of particular importance. Practical materials from zakonpravo.kz confirm the use of this provision to submit specific procedural requests. (Law and Law)

71. Securing a Civil Claim

If there is a risk that the accused may dispose of their property, the issue of securing the civil claim should be raised in a timely manner.

In practice, this may be important in claims involving:

• substantial material damage;
• expenses for long-term treatment;
• significant compensation;
• future enforcement of the judgment.

One must not wait until the proceedings have ended if there is a real risk of concealment or disposal of property.

72. Practical Structure of a Civil Claim

It is advisable to structure the claim as follows:

1. Factual Circumstances

When, where, and how the violence was committed.

2. Criminal-Law Classification

Paragraph 3 of part 2 of Article 110 of the Criminal Code.

3. Consequences

Physical and psychological consequences.

4. Medical Consequences

With supporting documents.

5. Material Expenses

With calculations.

6. Moral Harm

A description of the specific suffering.

7. Causal Relationship

Between the crime and the harm.

8. Amount of the Claims

Material and moral harm separately.

9. Evidence

List of attachments.

73. Example of Wording for the Subject Matter of a Civil Claim

The following wording may be used in a procedural document:

“I request that compensation for moral harm caused by the commission of a criminal offence provided for by paragraph 3 of part 2 of Article 110 of the Criminal Code of the Republic of Kazakhstan be recovered from the defendant in favour of the victim, taking into account the nature and degree of the physical and mental suffering caused, the victim’s pregnancy at the time the crime was committed, the nature and duration of the violent acts, the consequences for the victim’s physical and psychological condition, as well as other circumstances established by the court.”

The amount must be individually substantiated rather than simply stated as an arbitrary sum.

74. The Victim’s Practical Position in Court

The most logical structure of the position in court is as follows:

First block

Prove the fact of violence.

Second

Prove the specific nature of the torture.

Third

Prove the pregnancy.

Fourth

Prove the accused’s awareness of the pregnancy.

Fifth

Prove the suffering caused.

Sixth

Exclude a more serious offence or substantiate the necessary concurrence of offences.

Seventh

Substantiate the civil claim.

Eighth

Substantiate the need for protective measures.

75. What Is Particularly Important to Prove under Article 110(2)(3)

In practical terms, the evidentiary checklist is as follows:

76. The Most Common Error of the Prosecution

In practice, it is dangerous to construct the prosecution’s case as follows:

“The accused struck a pregnant woman; therefore, this falls under part 2, paragraph 3, of Article 110.”

This is insufficient.

It is necessary to prove specifically the offence of torture.

Pregnancy is a qualifying element of an existing criminal offence; it does not replace the elements of the underlying offence.

77. The Most Common Error of the Defence

The defence sometimes limits itself to the argument:

“She was not pregnant,”

or:

“I did not know about the pregnancy.”

Even if this argument succeeds, it does not necessarily exclude liability under part 1 of Article 110 or another article.

Therefore, the defence must separately challenge:

• the fact of violence itself;
• the nature of the violence;
• the suffering;
• the purpose;
• the particular cruelty;
• the causal relationship;
• the reliability of the evidence;
• the admissibility of the evidence.

78. Significance of the Domestic Context

If the violence was committed by a spouse, partner, relative, or another person falling within the family and domestic context, it is necessary to apply not only the Criminal Code and the Criminal Procedure Code.

The Law “On the Prevention of Domestic Violence” must also be taken into account.

It provides for a system of preventive and protective measures, including a protective order and other individual preventive measures. (Law and Law)

79. Systematic Legal Framework

The case should be considered simultaneously in four legal dimensions:

Criminal Law

Article 110 of the Criminal Code.

Criminal Procedure

The Criminal Procedure Code — investigation, evidence, the victim, preventive measures.

Civil Law

Articles 917, 951, and related provisions of the Civil Code concerning compensation for harm.

Law on Protection against Domestic Violence

The Law on the Prevention of Domestic Violence.

Additionally, the following apply:

• the Constitution;
• international treaties;
• CEDAW;
• the International Covenant on Civil and Political Rights (ICCPR);
• the Convention against Torture;
• normative resolutions of the Supreme Court;
• legislation on forensic examination;
• legislation on the Victim Compensation Fund.

80. Main Regulatory Legal Acts

80.1. Constitution of the Republic of Kazakhstan

In particular:

• Article 13 — judicial protection;
• Article 14 — equality;
• Article 17 — human dignity;
• Article 18 — inviolability of private life;
• Article 77 — guarantees of justice.

80.2. Criminal Code of the Republic of Kazakhstan

Main provisions:

• Article 3 — categories of criminal offences;
• Article 11 — categories of crimes;
• Article 54 — aggravating circumstances;
• Article 68 — reconciliation;
• Article 71 — limitation periods;
• Article 110 — torture;
• Article 146 — torture;
• provisions concerning bodily harm.

Article 110 is the key provision. (Law and Law)

80.3. Criminal Procedure Code of the Republic of Kazakhstan

Key areas:

• rights of the victim;
• evidence;
• motions;
• civil claims;
• security measures;
• preventive measures;
• measures of procedural coercion;
• expert examinations;
• jurisdiction;
• appeals.

In particular:

• Article 99;
• Article 110;
• Article 125;
• Article 136;
• Article 147;
• Article 155;
• Article 166;
• Article 173;
• Article 271;
• Article 306 and subsequent provisions concerning jurisdiction.

81. Civil Code of the Republic of Kazakhstan

Key provisions:

• Article 917 — the general principle of compensation for harm;
• Article 951 — moral harm;
• Article 952 — compensation for moral harm;
• Article 178 — the general limitation period for claims;
• Article 187 — claims to which the limitation period does not apply.

Article 187 is particularly important for this category of cases. (Law and Law)

82. Law “On the Prevention of Domestic Violence”

Key provisions:

• Article 1 — basic concepts;
• Article 3 — principles;
• Article 17 — individual preventive measures;
• Article 18 — grounds;
• Article 20 — protective order;
• Article 22 — special requirements regarding behaviour.

(Law and Law)

 83. Law “On State Guarantees of Equal Rights and Equal Opportunities for Men and Women”

The following are particularly important:

• Article 2;
• Article 3;
• Article 4;
• Article 15.

The Law expressly permits special measures to protect women related to pregnancy and criminal procedural protection. (Law and Legal Affairs)

84. Law “On the Victims’ Compensation Fund”

The following provisions should be examined:

• Article 6 — who is entitled to compensation;
• Article 7 — the amount of compensation;
• Article 8 — the procedure for awarding compensation;
• Article 10 — the sources of the Fund.

Under Article 110, the direct right to receive a payment under the list set out in Article 6 does not arise automatically. (Law and Legal Affairs)

85. Regulatory Resolution No. 1 of the Supreme Court dated May 11, 2007

“On the Qualification of Certain Criminal Offences Against Human Life and Health.”

This is one of the principal judicial acts concerning:

• distinguishing between criminal offences;
• assessing the form of guilt;
• establishing the method;
• determining the consequences;
• evaluating forensic medical examinations.

(Law and Legal Affairs)

86. Regulatory Resolution No. 7 of the Supreme Court dated December 28, 2009

“On the Application of Criminal and Criminal Procedural Legislation Concerning the Observance of Personal Liberty and the Inviolability of Human Dignity, Combating Torture, Violence, and Other Cruel or Degrading Treatment or Punishment.”

It is particularly important for:

• distinguishing torture from torment;
• the admissibility of evidence;
• the protection of dignity;
• the assessment of unlawful coercion.

(Law and Legal Affairs)

87. Regulatory Resolution No. 7 of the Supreme Court dated November 27, 2015

“On the Application by Courts of Legislation on Compensation for Moral Harm.”

This is the principal act concerning:

• the concept of moral harm;
• the determination of physical and emotional suffering;
• limitation periods;
• determining the amount of compensation;
• establishing the grounds for liability.

(Law and Legal Affairs)

88. Regulatory Resolution of the Supreme Court on Article 68 of the Criminal Code

The Supreme Court’s Regulatory Resolution dated June 21, 2001, concerning the application of Article 68 of the Criminal Code is important for:

• the conditions for reconciliation;
• the actual redress of harm;
• voluntariness;
• determining the moment of reconciliation;
• the procedural formalization of the victim’s statement.

(Law and Legal Affairs)

89. Regulatory Resolution of the Supreme Court on International Treaties

Regulatory Resolution No. 1 of the Supreme Court of the Republic of Kazakhstan dated July 10, 2008, confirms the need for courts to apply the international treaties of the Republic of Kazakhstan where the prescribed conditions are met. (Law and Legal Affairs)

90. Practical strategy for the victim

If the lawyer’s task is to protect the interests of a pregnant victim, an optimal procedural strategy may be structured as follows.

Stage 1. Immediate preservation of evidence

Obtain:

• medical records;
• photographs;
• video recordings;
• correspondence;
• call recordings;
• surveillance camera footage and data.

Stage 2. Safety

Raise the issue of:

• a prohibition on approaching the victim;
• a protective order;
• other safety measures;
• a preventive measure.

Stage 3. Medical examination

Seek a comprehensive examination of:

• injuries;
• the degree of harm;
• pregnancy;
• possible complications;
• the causal relationship.

Stage 4. Proving knowledge

Collect a separate body of evidence establishing that the accused knew about the pregnancy.

Stage 5. Proving torment

Do not limit the case to the fact of a single blow.

Demonstrate:

• systematic conduct;
• repetition;
• the method;
• duration;
• threats;
• humiliation;
• the infliction of pain;
• the purpose of causing torment.

Stage 6. Civil claim

Claim:

• material damage;
• moral harm;
• procedural expenses;
• medical treatment expenses.

Stage 7. Monitoring the investigation

Obtain procedural decisions and respond to investigative inaction.

91. Strategy on appeal

The victim’s appeal may be structured as follows:

1. a brief description of the circumstances;
2. the legal classification established by the court;
3. evidence of pregnancy;
4. evidence that the accused knew about the pregnancy;
5. evidence of torment;
6. evidence of particular cruelty;
7. evidence of the consequences;
8. errors made by the court;
9. assessment of each disputed piece of evidence;
10. violation of criminal law;
11. violation of the Criminal Procedure Code;
12. the civil claim;
13. safety measures;
14. the prayer for relief.

92. If the court rejects the qualifying circumstance of pregnancy

It is necessary to determine separately:

Did the court exclude only paragraph 3 of part 2 of Article 110, or did it exclude the entire offence of torment?

If only the qualifying circumstance was excluded, it is necessary to examine why the court:

• did not find the accused’s knowledge to be proven;
• did not find the fact of pregnancy to be proven;
• did not find the time at which the accused became aware of the pregnancy to be proven;
• rejected specific evidence.

If, however, the court excluded the offence of torment itself, the dispute must instead concern the elements of part 1 of Article 110.

93. If the court classified the acts as a more serious offence

If it is established that serious or moderate bodily harm was caused, it is necessary to examine whether classification under Article 110 is erroneous.

Article 110 has its own scope of application, associated with the absence of serious or moderate bodily harm. (Law and Legal Affairs)

Therefore, in such situations, the victim’s legal representative may, conversely, raise the issue of correct classification under the relevant article concerning offences against health.

94. Key conclusion regarding pregnancy

Legally, pregnancy performs two functions under paragraph 3 of part 2 of Article 110 of the Criminal Code:

Objective

The victim must actually be pregnant.

Subjective

The perpetrator must knowingly be aware of this fact.

This is fundamental.

If the objective fact of pregnancy is proven, but the perpetrator’s awareness is not proven, the qualifying circumstance may remain unproven.

95. Key conclusion regarding time limits

The following time limits must be distinguished:

Article 71 provides for a 10-year limitation period for a serious crime. (Law and Legal Affairs)

Article 178 of the Civil Code provides for a general three-year limitation period for civil claims. (Law and Legal Affairs)

Article 187 of the Civil Code excludes from the limitation period claims concerning the protection of intangible benefits and personal non-property rights, as well as claims for compensation for harm to health, subject to the specific provisions established by law. (Law and Legal Affairs)

96. Key conclusion regarding reconciliation

The victim’s pregnancy:

does not automatically mean that reconciliation is prohibited.

However:

• an offence under paragraph 3 of part 2 of Article 110 is a serious crime;
• the general mechanism under part 1 of Article 68 is intended for minor and medium-gravity offences;
• the special rule under part 2 of Article 68 concerns certain categories of offenders;
• Article 146 — torture — is expressly excluded from the scope of Article 68;
• therefore, classification under Article 110 and classification under Article 146 have fundamentally different consequences with regard to reconciliation. (Law and Legal Affairs)

97. Key conclusion regarding preventive measures

Article 110 is expressly included in the list under Article 136 of the Criminal Procedure Code, which allows detention in custody to be considered on the grounds of the seriousness of the offence and/or its legal classification. (Law and Legal Affairs)

However, a final decision requires the establishment of the relevant procedural grounds.

In cases of domestic violence, the issue must be assessed collectively, taking into account:

the seriousness of the offence + the risk of repeated violence + the risk of influencing the victim + the risk of concealing evidence + other circumstances.

98. Key conclusion regarding evidence

The strongest evidentiary framework under paragraph 3 of part 2 of Article 110 consists of:

medical records

• expert examination;
• correspondence concerning the pregnancy;
• evidence that the accused knew about the pregnancy;
• objective evidence of violence;
• the victim’s testimony;
• witness testimony;
• photographs/video recordings;
• surveillance camera data;
• information about previous incidents;
• evidence of psychological suffering.

A single source of evidence does not necessarily have to establish all the circumstances.

99. Key conclusion regarding judicial practice

Judicial practice concerning the category of cases under consideration should be conditionally divided into four levels.

First level — Article 110 itself

Classification of torment and the qualifying circumstance of pregnancy. (Law and Legal Affairs)

Second level — offences against health

Determining the severity of harm, the causal relationship, the form of guilt, and the significance of expert examinations. (Law and Legal Affairs)

Third level — torture

Distinguishing between Article 110 and Article 146. (Law and Legal Affairs)

Fourth level — civil-law consequences

Moral harm, limitation periods for civil claims, and legal costs. (Law and Legal Affairs)

This division makes it possible to avoid confusing different legal issues.

100. Practical conclusion

To classify acts under paragraph 3 of part 2 of Article 110 of the Criminal Code of the Republic of Kazakhstan, it is not sufficient to prove merely that violence was committed against a pregnant woman.

It is necessary to establish:

violent acts → infliction of physical and/or psychological suffering → elements of torment → the victim’s pregnancy → the perpetrator’s knowledge of the pregnancy → the intentional nature of the acts → the absence of grounds for classification under a more serious special offence.

At the same time, the victim is entitled to seek:

compensation for material damage + compensation for moral harm + procedural expenses provided for by law.

In cases of domestic violence, the following additional measures should be used:

protective order + prohibition on approaching the victim + measures to ensure the victim’s safety + an appropriate preventive measure.

If pregnancy complications occur, the following must be examined separately:

medical harm + causal relationship + degree of severity + the possibility of additional legal classification.

If there are indications of torture, Article 146 of the Criminal Code must be examined separately, since the Supreme Court expressly requires torture and torment to be distinguished. (Law and Legal Affairs)

101. Main links on zakonpravo.kz

Criminal Code of the Republic of Kazakhstan

Article 110 of the Criminal Code — Torment

Article 54 of the Criminal Code — Circumstances aggravating criminal liability and punishment

Article 68 of the Criminal Code — Reconciliation

Article 71 of the Criminal Code — Limitation period

Criminal Procedure Code of the Republic of Kazakhstan

Article 125 of the Criminal Procedure Code — Assessment of evidence

Article 136 of the Criminal Procedure Code — Grounds for applying preventive measures

Article 147 of the Criminal Procedure Code — Detention in custody

Article 155 of the Criminal Procedure Code — Grounds for applying other procedural coercive measures

Article 166 of the Criminal Procedure Code — Civil claims considered in criminal proceedings

Article 173 of the Criminal Procedure Code — Victims’ Compensation Fund

Article 271 of the Criminal Procedure Code — Mandatory appointment of an expert examination

Article 306 of the Criminal Procedure Code — Criminal cases within the jurisdiction of district and equivalent courts

Civil Code of the Republic of Kazakhstan

Article 178 of the Civil Code — General limitation period for civil claims

Article 187 of the Civil Code — Claims not subject to limitation periods

Domestic Violence

Article 3 of the Law on the Prevention of Domestic Violence — Principles of the prevention of domestic violence

Article 17 — Individual preventive measures

Article 20 — Protective order

Article 22 — Special requirements for the conduct of the offender

International Law

Ratification of the International Covenant on Civil and Political Rights

Application of the provisions of international treaties of the Republic of Kazakhstan — Regulatory Resolution No. 1 of the Supreme Court dated July 10, 2008

Accession of Kazakhstan to CEDAW

Supreme Court Case Law

Regulatory Resolution No. 1 of May 11, 2007 — Offences against life and health

Regulatory Resolution No. 7 of December 28, 2009 — Torture, violence, and human dignity

Regulatory Resolution No. 7 of November 27, 2015 — Compensation for moral harm

Supreme Court Regulatory Resolution on Article 68 of the Criminal Code — Reconciliation

Victims’ Compensation Fund

Article 6 of the Law — Victims entitled to compensation

Article 7 — Amount of compensation

Article 8 — Procedure for awarding compensation

102. Final Legal Formula

For practical application, I would formulate the legal framework as follows:

Paragraph 3 of part 2 of Article 110 of the Criminal Code of the Republic of Kazakhstan establishes a qualified form of torment. To apply it, it is necessary to prove simultaneously both the objective elements of torment and the perpetrator’s subjective awareness of the victim’s pregnancy. The mere fact that the victim is pregnant does not replace the requirement to prove the elements of torment, and the mere fact of violence does not replace the requirement to prove the perpetrator’s knowing awareness of the pregnancy.

At the same time:

1. The case is investigated in accordance with criminal procedure.
2. In the ordinary situation, it is considered by a district or equivalent court.
3. A preliminary civil-law claim is not a prerequisite for criminal prosecution.
4. A civil claim for material damage and moral harm may be brought within the criminal proceedings.
5. Where necessary, safety measures and a prohibition on approaching the victim are used.
6. Article 110 is included in Article 136 of the Criminal Procedure Code for the purpose of deciding whether detention in custody may be applied.
7. The degree of bodily harm is established by a forensic medical examination.
8. If there are indications of torture, Article 146 of the Criminal Code must be examined.
9. The general limitation period for a serious crime is ten years if the general rules of Article 71 apply.
10. Claims concerning the protection of intangible benefits and moral harm are subject to a special limitation-period regime.
11. The victim’s pregnancy does not in itself exclude reconciliation; however, the application of Article 68 depends on the category of the offence, the status of the offender, and other conditions.
12. The international standards of the ICCPR, CEDAW, and the Convention against Torture reinforce the requirements for an effective investigation, protection of the victim, and compensation for harm.

For legal practice, four evidentiary components are the most significant:

(1) proving torment; (2) proving pregnancy; (3) proving that the accused knew about the pregnancy; (4) proving the consequences and the amount of harm.

These four components must be reflected in the decision on legal classification, the indictment, the court judgment, and, where necessary, the appeal.

I would separately emphasize an important practical point: in an actual criminal case, I would not limit myself to this general legal classification. If you provide the factual circumstances of the case — who the perpetrator is (husband/cohabiting partner/former spouse/another person), the number of incidents, the stage of pregnancy, the specific acts committed, the harm established by the expert examination, and the procedural stage of the case — it will be possible to prepare a case-specific legal analysis for the lawyer: legal classification → evidence → motions → preventive measures/safety → civil claim → position in closing arguments → prospects on appeal, together with drafts of procedural documents.

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