Circumstances which mitigate criminal liability and punishment

The following shall be recognised as circumstances which mitigate criminal liability and punishment:

a) the commission for the first time of a lesser crime as a consequence of an accidental conjuncture of circumstances;

b) minority of a convict;

c) pregnancy;

d) the existence of small children of a convict;

e) rendering of medical and other assistance to the victim directly after the commission of a crime, voluntary compensation for property damage and moral damage inflicted as a result of a crime, and other actions directed at the compensation or atonement for damage caused by a given crime;

f) the commission of a crime as a result of concurrence of serious personal, family, or other circumstances, or by the motive of compassion;

g) the commission of a crime as a result of physical or psychic coercion, or by virtue of material, official, or other dependence;

h) the commission of a crime in violation of the conditions of lawful necessary self-defense, extreme necessity, detention of a person having committed a crime, justifiable risk, and the execution of an order or instruction;

i) unlawfulness or immorality of the behavior of a given victim which served as a an incentive for a given crime;

j) sincere repentance, confessing to the police and pleading guilty, active contributing to the disclosure of a crime, exposing other participants in a crime, and search for property acquired as its result.

Circumstances which aggravate criminal liability and punishment.

The following shall be recognised as circumstances liability and punishment: which aggravate criminal

a) repetition of crimes, criminal recidivism;

b) the causation of serious consequences by a crime;

c) the commission of a crime within a group of persons, a group of persons in

preliminary collusion, an organized group or a criminal association (criminal organization);

d) an especially active part in the commission of a crime;

e) involvement in the commission of a crime of persons who suffer from serious psychic disorders, a given convict being aware of that fact, or persons who did not reach the age from which criminal liability arises;

f) the commission of a crime under a motivation of national, racial, or religious hatred or enmity, out of revenge for lawful actions of other persons, as well as for the purpose to conceal another crime, or to facilitate its commission;

g) the commission of a crime with regard to a woman who is pregnant, a convict being aware of that fact, as well as with regard to a small child, another defenseless or helpless person, or a person who is dependent upon the convict;

h) the commission of a crime with regard to a person or his relatives in relation to the implementation by that given person of his official, professional, or public duty;

i) the commission of a crime involving an atrocity, sadism, mockery, as well as torments for the victim;

j) the commission of a crime with the use of arms, ammunition, explosive substances, an explosive or other devices imitating them, specially made technical instruments, combustible and inflammable liquids, poisonous and radioactive materials, medicinal and other chemico-pharmacological substances, as well as with the application of physical or psychic coercion, or by generally dangerous methods;

k) the commission of a crime with the use of conditions of an extraordinary situation, natural or other social disaster, as well as in cases of mass unrest;

l) the commission of a crime in a condition of alcoholic, narcotic, or toxicomanic inebriation. A court shall have the right, depending on the character of a given crime, not to recognise this circumstance as aggravating;

m) the commission of a crime by a person who violated by that a military oath or a professional vow;

n) the commission of a crime with the use of trust rendered to a convict by virtue of his service position or a certain contract;

o) the commission of a crime with the use of a uniform or documents of a representative of authority.

10.4 Criminal Legislation of the Republic of Kazakhstan

The criminal legislation of the Republic of Kazakhstan shall consist exclusively of the Criminal Code of the Republic of Kazakhstan. Other laws which stipulate criminal liability shall only be subject to application after their inclusion into the Criminal Code.

The Criminal Code of the Republic of Kazakhstan was adopted by Law No. 167 of 16 july 1997.

A Criminal code (or penal code) is a document which compiles all, or a

significant amount of, a particular jurisdiction's criminal law. Typically a criminal code will contain offences which are recognized in the jurisdiction, penalties which might be imposed for these offences and some general provisions (such as definitions and prohibitions on retroactive prosecution).

The term "penal code" (code pénal) derives from the French Penal Code of 1791.

Objectives of the Criminal Code are follows: the protection of the rights, freedoms, and legitimate interests of individuals and of citizens, as well as of property, rights, and legitimate interests of organizations, public order and safety, the environment, constitutional order, and territorial integrity of the Republic of Kazakhstan, the interests of society and the state protected by law from criminal infringements, the protection of the peace and safety of mankind, as well as the prevention of crimes.

For the implementation of these objectives, the Criminal Code establishes the bases for criminal liability, and defines what acts, which are dangerous for a person, society, or the state, shall be recognised as crimes, and establishes punishments and other measures of criminal-legal retribution for their commission.

The Criminal code consists of the General (sections I—VII) and Special parts (chapter 1 — 16). The general part shares on sections, Special — on chapters; smaller divisions are absent.

The General part includes the basic concepts of the criminal legislation, the bases of criminal liability and release from it, general provisions on criminal penalty and release from it, coercive measures of treatment, and also establishes feature of criminal liability of minors.

The special part includes articles describing structures of concrete crimes. The structure of Special part reflects hierarchy of the values protected by the criminal law: crimes against the personality, then crimes against a family and minor, constitutional laws and freedoms are on the first place. Further there are crimes against the world and safety of mankind, the constitutional system and safety of the state, property.

The criminality and punishability of an act shall be defined by the law which was in effect during the time of the commission of that crime.

A law which eliminates the criminality or punishability of a given act, and which mitigates liability or punishment for it, or which otherwise improves the status of a person who committed it, shall have retroactive force, that is, it shall apply to persons who committed relevant crimes prior to its introduction into effect, including persons who are serving their terms, or have served but still had a conviction on their record. If a new criminal law mitigates punishability of a given act for which a person is serving a term, then the appointed punishment shall be subject to reduction within the sanctions of that newly adopted criminal law. A law, which establishes criminality or punishability of an act, which increases liability or punishment, or otherwise deteriorates the status of a person who committed that act, shall not be retroactive.

A person who committed a crime on the territory of the Republic of

Kazakhstan shall bear liability in accordance with the Criminal Code. An act which was begun, or continued, or ended on the territory of the Republic of Kazakhstan, shall be recognised as a crime committed on the territory of the Republic of Kazakhstan. The issue of criminal liability of diplomatic representatives of foreign states and other citizens who enjoy immunity, in case of the commission of a crime by them on the territory of the Republic of Kazakhstan, shall be resolved in accordance with the norms of international law.

Citizens of the Republic of Kazakhstan who committed a crime outside of the boundaries of the Republic of Kazakhstan shall be subject to criminal liability in accordance with the Criminal Code, if a given act which was committed is recognised as a crime on the territory of a state where it was committed, and if those persons were not convicted in that other state. Former conviction, and other criminal-legal consequences of the commission by a person of a crime on the territory of another state, shall not have criminal-legal significance for deciding on the issue of criminal liability of that person for a crime committed on the territory of the Republic of Kazakhstan, unless it is otherwise stipulated by an international treaty of the Republic of Kazakhstan, or when a given crime committed on the territory of another state did not concern the interests of the Republic of Kazakhstan.

Foreigners who committed crimes outside of the boundaries of the Republic of Kazakhstan shall be subject to criminal liability in accordance with the Criminal Code in cases in which a given crime was directed against the interests of the Republic of Kazakhstan, and in cases stipulated by an international treaty of the Republic of Kazakhstan, if those foreigners were not convicted in that other state, and are brought to criminal liability on the territory of the Republic of Kazakhstan.

Citizens of the Republic of Kazakhstan who committed a crime on the territory of another state shall not be subject to extradition to that other state, unless it is otherwise established by international treaties.

Used and recommended literature:

1. Каиржанов Е.И. Уголовное право Республики Казахстан. Алматы, 1998.

2. Уголовное право Республики Казахстан: учебник / Н.А. Абдиров, А. Агибаев, Б.И. Ахметов и др.; Под ред. И.Ш. Борчашвили, С.М. Рахметова. - Алматы: Данекер, 2000.

3. Criminal Code of the Republic of Kazakhstan. Code of the Republic of Kazakhstan dated July 16, 1997 No. 167 // http://adilet.zan.kz/eng/

4. Dennis J. Baker, Glanville Williams. Textbook of Criminal Law. London: 2012.

5. Dr. Anwarullah. The Criminal Law of Islam. Published By A.S. Noordeen: 2010.

Answer the following questions using the information from this text:

1. What is a purpose of the Criminal Law?

2. What is a crime? The elements of a crime.

3. What is your opinion concerning death penalty? Give your pros and cons.

4. What activities are embraced by the criminal law?

5. How does criminal law govern the relationship between the state and individual?

6. Under what two general categories are crimes reported?

7. What does violent crime include? What does property crime include?

8. Give different opinions on the reasons for crime.

9. What is features of application of punishment towards foreigners?

10. Do you share the opinion that criminals need help more than punishment? Give your arguments for and against this statement.

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