A person convicted of committing a crime is considered to have a criminal record from the day the court’s guilty verdict enters into legal force until the moment the criminal record is expunged or removed.

Legal Commentary on Article 79 of the Criminal Code of the Republic of Kazakhstan “Criminal Record”

1. General Characteristics of the Article

Article 79 of the Criminal Code of the Republic of Kazakhstan regulates the concept of a criminal record, its commencement and termination, the procedure for expungement and removal, as well as the legal consequences of having a criminal record.

A criminal record plays an important role in the criminal-law status of a person and affects the possibility of applying a number of legal provisions, including:

• the institution of recidivism (Articles 11 and 58 of the Criminal Code of the Republic of Kazakhstan);

• exemption from criminal liability (Chapter 7 of the Criminal Code of the Republic of Kazakhstan);

• sentencing.

2. Content and Legal Analysis by Paragraphs

Part 1: Beginning and End of a Criminal Record

• A criminal record arises from the day the court’s guilty verdict enters into legal force and remains until it is expunged or removed.

• A criminal record is taken into account in the following cases:

  • when determining recidivism (Article 11);

  • when applying Article 58 (sentencing in cases of recidivism);

  • other legal consequences (for example, restrictions on employment, impossibility of release under amnesty).

Part 2: Exceptions

• A person released from punishment, as well as a person convicted of a criminal misdemeanor, is considered not to have a criminal record.

• This exception corresponds to the principle of differentiation of criminal liability.

Part 3: Procedure for Expungement of a Criminal Record

Specific time limits are established depending on the severity of the crime:

• 3 years – crimes of minor and medium gravity;

• 6 years – serious crimes;

• 8 years – especially serious crimes.

These time limits correspond to the level of public danger of the act. Courts often refer to this rule when considering petitions for expungement of a criminal record.

Parts 4 and 5: Expungement in Case of Early Release and Additional Punishment

• The period for expungement is calculated from the moment of the actual completion of both the principal and additional punishments.

• Special feature: if a lifetime ban on engaging in certain activities is imposed, the criminal record effectively remains indefinitely in terms of legal consequences.

Part 6: Aggregate of Crimes

• In the case of multiple convictions, criminal records are expunged separately for each crime; however, the period is calculated from the moment of full completion of the aggregate sentence.

• This provision prevents artificial fragmentation of punishments.

Part 7: Early Removal of a Criminal Record

• The court has the right to remove a criminal record early if the behavior of the convicted person has been impeccable.

• Exceptions: serious and especially serious crimes and recidivism — strict limitations apply, reflecting increased responsibility of such persons.

Part 8: Interruption of the Period in Case of a New Crime

If a new crime is committed before the expiration of the expungement period:

• the period is interrupted;

• the person is considered to have a criminal record for both crimes until the new expungement period expires for the more serious offense.

Part 9: Consequences of Expungement or Removal

• Complete annulment of criminal-law consequences.

• Exception: restrictions related to lifetime punishments and the provisions of Part 10 (see below).

Part 10: Limitation When Determining the Type of Penal Institution

• Expungement or removal of a criminal record does not affect the court’s determination of the type of institution within the penal enforcement system (for example, a strict-regime colony).

• The court may consider the previous criminal record as a characteristic of the person.

3. Related Articles and Normative Acts

Criminal Code of the Republic of Kazakhstan:

• Article 11 – Concept of recidivism

• Article 58 – Sentencing in cases of recidivism

• Chapter 7 – Exemption from criminal liability

Penal Enforcement Code of the Republic of Kazakhstan:

• Articles regulating the consideration of criminal records when determining the regime of detention.

Code of Administrative Offenses:

• A criminal record does not arise from administrative offenses.

4. International Norms

• International Covenant on Civil and Political Rights (Article 14) – recognition of the right to a fair trial.

Cases of the European Court of Human Rights:

• Khodorkovskiy and Lebedev v. Russia – the issue of taking criminal records into account in repeated accusations;

• X v. Austria – recognition of discrimination based on the existence of a criminal record.

5. Judicial Practice

• Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated July 11, 2003 No. 3: a criminal record affects sentencing and may serve as grounds for refusing mitigation.

• Decision of the Supreme Court of the Republic of Kazakhstan in case No. 4722/19: the court refused early removal of the criminal record, citing repeated administrative offenses committed by the convicted person.

Attention!   

       Law and Law Law Law draws your attention to the fact that this document is basic and does not always meet the requirements of a particular situation. Our lawyers are ready to assist you in legal advice, drawing up any legal document suitable for your situation.  

 For more information, please contact a Lawyer / Attorney by phone: +7 (708) 971-78-58; +7 (700) 978 5755, +7 (700) 978 5085. 

Attorney at Law Almaty Lawyer Legal Services Legal Advice Civil Criminal Administrative Cases Disputes Protection Arbitration Law Firm Kazakhstan Law Office  Court Cases