Comment to Article 5. Retroactive effect of the criminal law of the Criminal Code of the Republic of Kazakhstan of the Criminal Code of the Republic of Kazakhstan
1. A law that eliminates the criminality or punishability of an act, mitigates responsibility or punishment, or otherwise improves the situation of a person who committed a crime is retroactive, that is, it applies to persons who committed the relevant act before the entry into force of such a law, including persons serving a sentence or who have served a sentence but have a criminal record.
2. If a new criminal law mitigates the criminality of an act for which a person is serving a sentence, then the imposed punishment is subject to reduction within the limits of the sanction of the newly issued criminal law.
3. A law that establishes the criminality or punishability of an act, increases responsibility or punishment, or otherwise worsens the situation of the person who committed the act, has no retroactive effect.
Article 5 of the Criminal Code provides for an exception to the rule of the criminal law in time (Article 4 of the Criminal Code), which is called the retroactive effect of the criminal law. The retroactive effect of the criminal law is the extension of the newly adopted law to persons who committed the relevant act before the entry into force of such a law, including persons serving a sentence or who have served a sentence but have a criminal record.
According to Article 5 of the Criminal Code of the Republic of Kazakhstan, the law has retroactive effect, firstly, eliminating criminality and punishability of the act; secondly, mitigating responsibility or punishability; thirdly, otherwise improving the situation of the person who committed the crime. A similar provision is contained in Article 37 of the Law "On Regulatory Legal Acts". This principle is constitutional. Thus, paragraph 5 of Article 77 of the Constitution of the Republic of Kazakhstan states that "laws that establish or strengthen responsibility, impose new responsibilities on citizens or worsen their situation are not retroactive. If, after the commission of an offence, the responsibility for it is abolished or mitigated by law, the new law applies."
A law that eliminates criminality and punishability of an act is recognized as a law that excludes a separate act previously recognized as a crime from the circle of criminal acts. The Law of the Republic of Kazakhstan "On Amendments and Additions to the Criminal, Criminal Procedure, and Penal Enforcement Codes of the Republic of Kazakhstan and the Code of Administrative Offenses on simplification of procedures for investigating criminal cases, decriminalization of Certain Types of crimes and Improvement of legislation on administrative offenses" dated December 9, 2004, art. 106 of the Criminal Code of the Republic of Kazakhstan, which provides for liability for beatings, is excluded from the Criminal Code of the Republic of Kazakhstan. Partial decriminalization of the act is possible by including additional features in the disposition. Thus, according to Part 1 of Article 186 of the Criminal Code of the Republic of Kazakhstan, a person was criminally liable for illegal entry into someone else's land, resulting in significant harm to the rights or legally protected interests of society or the state. In accordance with the amendments and additions made by the Law of the Republic of Kazakhstan dated December 9, 2004 to recognize the committed act as a crime under Part 1 of art. 186 of the Criminal Code of the Republic of Kazakhstan requires that the above actions be associated "with the use of violence or with the threat of its use or by a group of persons, or accompanied by an illegal search, as well as the illegal seizure of someone else's land.
In my opinion, partial decriminalization is also possible by changing the articles of the General Part of the Code. Thus, by specifying in Part 2 of Article 24 of the Criminal Code of the Republic of Kazakhstan that "criminal liability is incurred for preparing only for a grave or especially grave crime," the legislator decriminalized preparation for crimes of minor and moderate severity. And by specifying in Part 4 of this article that "criminal liability is imposed for an attempt only on a crime of moderate gravity, grave and especially grave crime," the legislator decriminalized an attempt on a crime of minor gravity. From the moment of entry into force of the law eliminating the criminality of an act, criminal cases pending before the bodies of inquiry, preliminary investigation or courts are subject to termination, and persons convicted of their commission are exempt from punishment.
A law mitigating responsibility or punishment is considered to be a law that reduces the maximum and/or minimum limits of a particular type of punishment imposed under a previously valid law for committing a given act, or a law that establishes an alternative sanction that allows the court to impose a more lenient punishment.
Thus, the Law of the Republic of Kazakhstan "On Amendments and Additions to the Criminal, Criminal Procedure, and Penal Enforcement Codes of the Republic of Kazakhstan and the Code of Administrative Offenses on simplification of procedures for investigating criminal cases, decriminalization of Certain Types of crimes and improvement of legislation on administrative offenses" dated December 9, 2004, from the sanction: Part 2 of art. 175 of the Criminal Code; part 2 of Article 177 of the Criminal Code; part 3 of Article 182 of the Criminal Code excluded the lower limit of imprisonment "from two", and in Articles 183 of the Criminal Code, Articles 185 of the Criminal Code, the legislator excluded the indication "from three". Therefore, in accordance with Part 3 of art. 48 of the Criminal Code of the Republic of Kazakhstan, the minimum term of imprisonment for the commission of these crimes is six months. The same law supplemented the sanctions of Part 1 of Article 175 of the Criminal Code; Part 2 of Article 185 of the Criminal Code; parts 1 and 2 of Article 187 of the Criminal Code with a new type of punishment - "restriction of freedom".
A criminal law is recognized as more lenient and retroactive, also in the case when, with equal or different lower limits of the sanction, the upper limit of the sanction in the new law is lower than in the previous one. In the case of the same maximum of the basic punishment, the law establishing a lower minimum punishment is considered more lenient.
In cases where the law increases the punishment in one of the limits of the sanction and mitigates in the other (for example, the lower limit is raised and the upper limit is lowered), the article whose sanction provides for a lower upper limit of punishment should be considered more lenient, since the upper limit of sanctions is used as the basis for categorizing crimes (art. 10 of the Criminal Code). Attributing a crime committed by a perpetrator to a particular category entails different consequences in terms of content.
A novelty in the criminal legislation of the Republic of Kazakhstan, introduced in Article 5 of the Criminal Code, is that along with criminal laws that eliminate the criminality of an act or mitigate punishment, laws that "otherwise improve the situation of the person who committed the crime" are also retroactive. It follows that not only articles of the Special Part of the Criminal Code are retroactive. prescribing penalties for specific crimes, but also the norms of the General part of the Criminal Code, defining such general rules as prescription, criminal record, etc.
In other ways, the situation of a person who has committed a crime can be improved, for example, by changing the regime of execution of punishment, the conditions of release from criminal liability due to active repentance, conditional early release from serving a sentence, replacement of the unserved part of the punishment with a milder type of punishment, etc.
It is difficult to resolve the issue of retroactive effect of the criminal law in cases where the law has changed several times after the commission of a crime and before the person is brought to justice. The question of the application of an "interim" law arises in cases where this law is milder in comparison with the law in force at the time of the commission of the crime and the law in force at the time of bringing a person to criminal responsibility or sentencing.
In my opinion, if the criminal law has been changed several times between the commission of a crime and the sentencing, the law most favorable to the perpetrator is applied, including the "interim" law. Otherwise, the punishment of the perpetrator would depend not only on the nature and degree of public danger of the crime, the circumstances of its commission and the identity of the perpetrator, but also on the time of bringing the person to criminal responsibility.
The issue of the operation of the "interim" law in the Criminal Code of Germany has been resolved in a similar way. The effect of the criminal law in time in Germany is defined by: a) $ 1 of the Criminal Code, which establishes the principle of nullum crimen sine lege, emphasizing its connection with time (the adoption of the law); b) $ 2 "action in time", which defines in a lengthy text the actual effect of the criminal law in time, i.e. the situation, when and in which the law and conditions are considered valid; c) $8, which determines what is the time of the act.
At the same time, Part 1 of Article 2 generally establishes that punishment and its additional consequences are determined by the law in force at the time of the commission of the act. Further, Parts 2-4 give more detailed rules for the operation of the criminal law in time. So, according to Part 2, if the threat of punishment is changed during the commission of the act, then the law in force at the end of the act applies, according to Part 3 - if the law in force at the end of the act is changed before the court decision is made, then a more lenient law applies.
Opposing points of view have been expressed in the legal literature on the issue of the operation of the "interim" law. Thus, N.D. Durmanov, Ya.M. Brainin, A.I. Boytsov, A.M. Medvedev, A.E. Yakubov spoke in favor of the application of the "intermediate" law, A.A. Tillet spoke against.
The provisions of the Criminal Code on the retroactive effect of the criminal law express the principle of humanism of criminal policy and criminal law.
In conclusion, I would like to note the following: pre-revolutionary Russian scientists expressed opposing views on the retroactive effect of criminal laws. V. Spasovich, A. Kistiakovsky, P. Kalmykov, and others believed that milder laws were retroactive. This position was not shared by N. Tagantsev, N. Sergeevsky, and others, who believed that the new criminal law applied to all acts recognized as criminal before its publication.
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
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