Comment to article 438. Discrepancy between the court-imposed punishment of the severity of the criminal offense and the personality of the convicted person The Criminal Procedure Code of the Republic of Kazakhstan
A punishment that is imposed without taking into account the general principles of sentencing and, although it does not exceed the limits provided for by the sanction of the relevant article of the Criminal Code of the Republic of Kazakhstan, is considered to be inconsistent with the severity of the criminal offense and the personality of the convicted person, but is unfair in its type and size due to excessive leniency or excessive severity.
The court of appeal has the right to commute the punishment or decide to impose a more severe punishment both in connection with the application of the law on a more serious criminal offense, and without retraining the actions of the convicted person. Making a decision that worsens the situation of a convicted person is allowed only if there are appropriate arguments in the complaints of the prosecution or the protest of the prosecutor and only within their limits. The application of the law on a more serious criminal offense cannot go beyond the charges brought against the defendant and supported by the prosecution in the court of first instance.
In cases where the court of first instance has decided to classify a criminal offense on the basis of part seven of Article 337 of this Code in connection with the change of charges by public and private prosecutors to a less serious one, the appellate instance has no right to apply the law on a more serious criminal offense, however, within the arguments of complaints, protest has the right to increase the term or amount of punishment or to assign to the convicted person another more severe type of punishment than is specified in the verdict.
1. Defining the general principles of sentencing, the Criminal Code of the Republic of Kazakhstan requires strict individualization of punishment. To this end, the courts, when imposing punishment, are required to take into account the degree of public danger of the crime and the identity of the perpetrator, including circumstances mitigating and aggravating the punishment, as well as the impact of the imposed punishment on the correction of the convicted person.
2. Punishment may be unfair if it is either excessively lenient or excessively harsh. A change in the sentence when the court of appeal recognizes the punishment imposed on the convicted person as excessively lenient is possible only in cases where the prosecutor's protest or complaint of the victim or his representative has been brought against the sentence and these protests or complaints have been brought specifically against the excessive leniency of the punishment imposed by the court on the convicted person.At the same time, the protest or complaint must contain arguments justifying the excessive leniency of the imposed punishment. 3. If the verdict (resolution) is appealed by the victim or protested by the prosecutor on other grounds, the court of appeal has no right to worsen the situation of the convicted person and go beyond the requirements contained in the complaint or protest.
Complaints from other participants in the process (for example, a civil plaintiff) about changing the sentence due to the need to apply the law on a more serious crime or because of the leniency of the punishment cannot serve as a basis for changing the sentence to a worse one.
4. The imposition of a more severe punishment than is provided for in the relevant article of the Special Part of the Criminal Code means that the court, when imposing punishment, exceeded the upper limit of the sanction established in the criminal law for the commission of this crime. When considering a case based on a complaint by the defense, improper application of the law by the court of first instance may serve as a basis for changing the verdict (resolution) only in cases where such a decision does not lead to a deterioration in the situation of the convicted person.
Commentary to the Criminal Procedure Code of the Republic of Kazakhstan from the Supreme Court of the Republic of Kazakhstan
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