Comment to Article 55. Imposition of a more lenient punishment than is provided for this crime in the Criminal Code of the Republic of Kazakhstan

     1. In the presence of exceptional circumstances related to the goals and motives of the act, the role of the perpetrator, his behavior during or after the commission of the crime, and other circumstances that significantly reduce the degree of public danger of the act, as well as with the active assistance of a participant in a group crime to the disclosure of crimes committed by a group, punishment may be imposed below the lowest limit provided for in the relevant article of the Special Part of this Code, or the court may impose a more lenient type of punishment than provided for in this article., or not to apply the additional type of punishment provided for as mandatory.      

2. Both individual mitigating circumstances and the totality of such circumstances may be considered exceptional.       As a rule, when imposing punishment, the court is guided by the types of punishment and its limits specified in the sanction of the article of the Criminal Code.      

However, as an exception, if there are exceptional circumstances related to the motives and objectives of the act, the role of the perpetrator, his behavior during and after the commission of the crime, and other circumstances that significantly reduce the degree of public danger of the act, as well as with the active assistance of a participant in a group crime to the disclosure of crimes committed by a group, the punishment may be imposed below the lowest the limit stipulated by the relevant article of the Special Part of the Criminal Code, or the court may impose a milder type of punishment than provided for in this article., or not to apply the additional type of punishment provided for as mandatory (art. 55 of the Criminal Code).      

Exceptional circumstances are not defined or named in the law, therefore, it is left to the court to determine whether the circumstances are exceptional. By their nature, they should be mitigating, but such as is emphasized in the law, which significantly reduce the degree of public danger of the act, as well as subject to the active assistance of the participant in a group crime to the disclosure of crimes committed by the group.      

The Supreme Court of the Republic of Kazakhstan, in the resolution of the Plenum dated April 30, 1999 "On the observance by courts of legality in the imposition of criminal punishment", noted in paragraph 7 that "exceptional circumstances may be recognized as individual mitigating circumstances, as well as their totality. The court is obliged to indicate in the verdict exactly which circumstances, established in the case, it recognizes as exceptional and, in combination with what data about the identity of the perpetrator, it takes them as the basis for the application of art. 55 of the Criminal Code."      

If a more lenient punishment is applied than is prescribed by law, a person guilty of committing several crimes should first be punished using Article 55 of the Criminal Code for one or for each of the crimes committed, and then the final punishment should be determined according to the rules of Article 58 of the Criminal Code.      

In itself, the commission of a grave or especially grave crime in the presence of exceptional circumstances is not an obstacle to assigning a punishment below the lowest limit to the perpetrator. 55 of the Criminal Code in case of recidivism, dangerous recidivism and especially dangerous recidivism of crimes, the rules of Part 2 of Article 59 of the Criminal Code do not apply.      

In order to reduce the punishment below the lowest limit, two kinds of exceptional circumstances are required: objective and subjective. Taken together, they should show that the committed act and the identity of the perpetrator constitute an exception to the series of events provided for in the article of the special part of the Criminal Code, and are less dangerous than other crimes of this type. Regarding the act, this may be information about the small amount of damage caused. Compensation for damages, sincere repentance, active assistance in solving a crime, etc. may indicate a significantly lower danger to a person.      

The court, in accordance with the law, is obliged to comprehensively assess exceptional circumstances so that the procedure for sentencing permitted by Article 55 of the Criminal Code is applied in exceptional cases and is not widespread without sufficient objective and subjective grounds. At the same time, the Supreme Court of the Republic of Kazakhstan, paragraph 9 of the Regulatory Resolution "On certain issues of sentencing to imprisonment" dated October 19, 2001. specified: "In accordance with Article 55 of the Criminal Code, by imposing a term of imprisonment below the lower limit than is provided for this crime, or by imposing another, more lenient punishment not specified in the sanction of the article (part of the article) on which the crime is qualified, the courts are required to provide the grounds for such a decision in the reasoning part of the verdict, to disclose the content of exceptional circumstances., which served as the basis for mitigation of punishment. The imposition of a more lenient punishment than is provided for this crime is allowed only in cases where all types of punishment provided for by the sanction cannot be applied due to their excessive severity and inconsistency with the nature and degree of public danger of the act and the established exceptional mitigating circumstance."      

In exceptional circumstances, the court may:

1) impose a penalty below the lowest limit provided for in the relevant article of the Special Part of the Criminal Code;

2) impose a milder type of punishment than provided for in this article;

3) do not apply an additional type of punishment.      

If the minimum penalty is not specified in the Special Part of the article, then a reduction of the penalty below the lower limit is excluded and the court may, if there is an alternative sanction, choose a milder form.      

In any case, the amount of punishment determined by the court using Article 55 of the Criminal Code cannot be lower than the minimum limit established by law for this type of punishment.

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.Sh.                  

Date of amendment of the act: 08/02/2007 Date of adoption of the act: 08/02/2007 Place of adoption: NO Body that adopted the act: 180000000000 Region of operation: 100000000000 Registration number of the NPA assigned by the normative body: 167 Status of the act: new Scope of legal relations: 028000000000 Form of the act: COMM Legal force: 1900 Language of the act: rus

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