Comment to Article 1. Criminal legislation of the Republic of Kazakhstan of the Criminal Code of the Republic of Kazakhstan
1. The criminal legislation of the Republic of Kazakhstan consists of the present Criminal Code of the Republic of Kazakhstan. Other laws providing for criminal liability are subject to application only after their inclusion in this Code.
2. This Code is based on The Constitution of the Republic of Kazakhstan and generally recognized principles and norms of international law. The Constitution of the Republic of Kazakhstan has the highest legal force and direct effect on the entire territory of the Republic. In case of contradictions between the norms of this Code and the Constitution of the Republic of Kazakhstan, the following provisions apply: The Constitution. The norms of this Code, recognized as unconstitutional, including infringing on human and civil rights and freedoms enshrined in the Constitution of the Republic of Kazakhstan, lose their legal force and are not subject to application. Regulatory rulings of the Constitutional Court and the Supreme Court of the Republic of Kazakhstan are an integral part of the criminal legislation of the Republic of Kazakhstan.
3. International treaties ratified by the Republic of Kazakhstan have priority over this Code. The procedure and conditions of operation in the territory of the Republic of Kazakhstan of international treaties to which the Republic of Kazakhstan is a party are determined by the legislation of the Republic of Kazakhstan.
During the existence of the USSR, along with the Criminal Code Kaz. The USSR applied all-Union criminal laws (Laws on State and military crimes).
Currently, only the Criminal Code of the Republic of Kazakhstan is in force on the territory of the Republic of Kazakhstan.
If new laws providing for criminal liability are adopted, they are subject to inclusion in the Criminal Code (Part 1). Without observing this condition, criminal liability cannot be applied. In practice, this rule is strictly observed, although the literature sometimes raises the question of adopting independent laws with criminal law norms.
In many Western countries (France, Germany, the Netherlands, etc.), along with the Criminal Code, there is extensive legislation containing criminal law norms providing for liability, for example, for economic, environmental, and transport crimes applied independently.
The Kazakh legislator did not follow this path. This decision is dictated by the desire of the legislator to preserve certain guarantees of legality in the field of the administration of justice in criminal cases.
Part 2 of the commented article establishes that the Criminal Code is based on the Constitution of the Republic of Kazakhstan, which has the highest legal force and direct effect (Part 1 of Article 4 of the Constitution). Its provisions cannot be in conflict with the Constitution and should develop and specify its provisions related to criminal liability. Thus, until the abolition of the death penalty on the basis of Part 2 of Article 15 of the Constitution, this type of punishment is established only for particularly serious crimes. In case of a conflict between the norms of the Criminal Code and the constitutional norm, the constitutional norms are subject to application.
From the above, it can be concluded that: constitutional norms of a criminal law and other nature have an advantage over the norms contained in the Criminal Code of the Republic of Kazakhstan, and no criminal law norm should contradict constitutional norms; criminal law can be checked for compliance with the Constitution of the Republic of Kazakhstan, which has recently been the case in practice; The Constitutional Council of the Republic of Kazakhstan can either recognize the criminal law norm as unconstitutional or confirm its constitutionality. In general, it is The Constitution of the Republic of Kazakhstan, its provisions on human and civil rights define the tasks of the Criminal Code and the content of criminal law norms.
However, neither the Constitution nor any other law other than the Criminal Code can directly formulate norms on criminal liability of persons. According to current legislation, the establishment of criminality and the criminality of an act is solely a function of the Criminal Code. If norms establishing criminal liability appear in any other legally adopted normative acts, they are subject to application only after they are introduced into the Criminal Code. The provision that the Criminal Code of the Republic of Kazakhstan is based on generally recognized principles and norms of international law is addressed to both the legislator and the law enforcement officer. Human rights and freedoms according to generally recognized principles and norms of international law, as well as international treaties of the Republic of Kazakhstan are directly applicable within the jurisdiction of the Republic of Kazakhstan.
A generally recognized norm of international law should be understood as a rule of conduct accepted and recognized by the international community of States as a whole as legally binding, and generally recognized principles of international law should be understood as fundamental peremptory norms of international law accepted and recognized by the international community of States as a whole, from which deviation is unacceptable. Generally recognized principles and norms of international law are enshrined in international covenants, conventions, and other documents (in particular, the Universal Declaration of Human Rights of 1948, the International Covenant on Civil and Political Rights of 1966, the European Convention for the Protection of Human Rights and Fundamental Freedoms of 1950 and its Protocols, etc.) and international treaties RK. At the same time, international treaties, the norms of which provide for elements of criminally punishable acts, cannot be applied directly by courts, since such treaties explicitly establish the obligation of the State to ensure the fulfillment of obligations stipulated in the treaty by establishing the punishability of certain crimes by internal (national) law (for example, the Single Convention on Narcotic Drugs of 1961, the International Convention for the Suppression of hostage-taking 1979, Convention for the Suppression of Unlawful Seizure of Aircraft 1970).
Part 3 of Article 4 of the Constitution of the Republic of Kazakhstan states that "international treaties ratified by the Republic take precedence over its laws and are applied directly, except in cases where it follows from an international treaty that a law is required for its application."
The norms of international legal conventions do not have sanctions, they can be implemented only if the norms on relevant crimes (usually of an international nature) have become norms of domestic criminal law. And in cases where this has not been done, no one can be held criminally responsible and convicted for a relevant act that is not provided for by domestic criminal law, even if it is provided for by international law. In this case, it is necessary to talk about the priority of domestic criminal law norms in relation to the norms of international law. International legal norms providing for elements of crimes should be applied by the courts of the Republic of Kazakhstan in cases where the norm of the Criminal Code explicitly establishes the need to apply an international treaty of the Republic of Kazakhstan (for example, Articles 158 and 159 of the Criminal Code).
Commentary from 2007 to the Criminal Code of the Republic of Kazakhstan from the Honored Worker of Kazakhstan, Doctor of Law, Professor, Academician of the Kazakhstan National Academy of Natural Sciences
BORCHASHVILI I.S.
Date of amendment of the act: 08/02/2007 Date of adoption of the act: 08/02/2007 Place of acceptance: NO Authority that adopted the act: 180000000000 Region of operation: 100000000000 NPA registration number assigned by the regulatory body: 167 Status of the act: new Sphere of legal relations: 028000000000 Report form: COMM Legal force: 1900 Language of the Act: rus
Constitution Law Code Standard Decree Order Decision Resolution Lawyer Almaty Lawyer Legal service Legal advice Civil Criminal Administrative cases Disputes Defense Arbitration Law Company Kazakhstan Law Firm Court Cases
