Commentary on Article 39. Concept and Purposes of Punishment of the Criminal Code of the Republic of Kazakhstan

1. Punishment is a measure of state coercion imposed by a court judgment. Punishment is applied to a person found guilty of committing a criminal offence and consists of the deprivation or restriction of that person's rights and freedoms as provided for by this Code.

2. Punishment is applied for the purposes of restoring social justice, as well as reforming the convicted person and preventing the commission of new criminal offences both by the convicted person and by other persons. Punishment is not intended to cause physical suffering or to humiliate human dignity.

In accordance with the principles and norms of international law, criminal legislation proceeds from the premise that the criminal nature of an act, as well as its punishability and other criminal-law consequences, are determined exclusively by the Criminal Code of the Republic of Kazakhstan. One of the forms of implementing criminal liability is punishment.

Criminal punishment is society's response, represented by the State, to a committed criminal offence. In the Russian language, the concept of “punishment” means a measure of influence applied to a person who has committed a misdemeanour or a crime.

The concept of “punishment” is associated with undesirable consequences arising for the person who has violated the criminal law. The institution of punishment is an interdisciplinary institution relevant to criminal law, criminal procedure law and penal enforcement law.

The functions of criminal law are diverse, and therefore, in the theory of criminal law, punishment is examined from different perspectives—as a legal institution, as a form of implementing criminal liability, as a factor in preventing crimes, and so forth.

The first mention of punishment is found in the Sobornoye Ulozhenie of 1649, which is also referred to in legal literature as the Code of Tsar Alexei Mikhailovich. The historical concept of punishment in criminal legislation was finally established in the nineteenth century. In the 1845 Code of Criminal and Correctional Punishments, it was used in the title of that legislative act.

The legislative definition of the concept of “punishment” was first provided in the 1919 Guiding Principles on Criminal Law of the RSFSR. Article 7 thereof stipulated: “Punishment is a measure of coercive influence through which the authorities protect the established order of social relations from those who violate it (criminals).”

In the 1926 Criminal Code of the RSFSR (which was in force in the territory of our country until the adoption of the 1959 Criminal Code of the Kazakh SSR), punishment was regarded as a measure of social protection, a defensive and expedient measure. Article 7 of that Code stated: “With respect to persons who have committed socially dangerous acts or who pose a danger due to their connections with the criminal environment or their past activities, measures of social protection of a judicial-correctional, medical or medical-pedagogical nature shall be applied.”

Measures of social protection of a judicial-correctional nature were understood to mean types of punishment. Although characterising punishment as a measure of social protection indicated, to a certain extent, its social purpose, it nevertheless “dissolved” punishment into other measures of social protection and, essentially, failed to reveal its nature.

The 1959 Criminal Code of the Kazakh SSR once again adopted the concept of punishment. The restoration of punishment in criminal legislation was of fundamental importance in terms of establishing legality and social justice and reflecting the priorities of combating crime.

Punishment is one of the central categories of criminal law because, firstly, a criminal-law prohibition is established through the regulation, in the sanctions of the provisions of the Special Part of the Criminal Code of the Republic of Kazakhstan, of a specific type of punishment, its term and amount, or several types of punishment. Secondly, punishment serves as a defining category on the basis of which the nature of other criminal-law measures can be understood. Is it possible to understand the essence of criminal conviction or exemption from punishment without disclosing the essence and content of criminal punishment? I believe not.

Pursuant to Part 1 of Article 39 of the Criminal Code, punishment is a measure of state coercion imposed by a court judgment. Punishment is applied to a person found guilty of committing a criminal offence and consists of the deprivation or restriction of that person's rights and freedoms as provided for by the Criminal Code.

The legislative definition gives rise to the characteristics of punishment that describe its legal essence and distinguish it from other measures of legal coercion. Punishment is a measure of state coercion provided for exclusively by the Criminal Code of the Republic of Kazakhstan and applied to a person irrespective of that person's will or wishes. It expresses the necessity of subordinating the individual nature of a person to rules that ensure the functioning and preservation of the interests of individual citizens, society as a whole, and the State as the most important institution of society.

In this sense, the coercive nature of punishment demonstrates the fact that the fundamental life-supporting interests of citizens, society and the State, when the most important conditions for their existence are at stake, take precedence over the interests of an individual who has violated the conditions necessary for the existence of these three components of human society. Every criminal offence is socially dangerous, that is, it poses a substantial threat to the normal existence of an individual, society or the State. To neutralise this threat, society, through its institutions (courts, the prosecutor's office and the police), protects itself, its citizens and the State from criminal offences.

Punishment differs from other coercive measures, such as those applied for administrative offences, both quantitatively (it involves a greater number of restrictions) and qualitatively (it is imposed exclusively for the commission of criminal offences, and its imposition entails the legal consequence of a criminal record for a crime).

Punishment is imposed exclusively by a court judgment.

In accordance with subparagraph 1) of paragraph 3 of Article 77 of the Constitution of the Republic of Kazakhstan, a person is presumed innocent of committing a crime until their guilt has been established by a court judgment that has entered into legal force. Pursuant to paragraph 1 of Article 75 of the Constitution of the Republic of Kazakhstan, justice in the Republic of Kazakhstan is administered exclusively by the courts.

A court judgment determines the legal assessment of the act committed and the person responsible for it. In accordance with subparagraph 52) of Article 7 of the Criminal Procedure Code, a court judgment is a decision rendered by a court of first-instance or appellate jurisdiction on the question of the guilt or innocence of the accused and the application or non-application of punishment to that person.

Pursuant to paragraph 3 of Article 76 of the Constitution of the Republic of Kazakhstan, a court judgment that has entered into legal force is universally binding and must be enforced throughout the territory of the Republic of Kazakhstan.

Punishment is applied to a person found guilty of committing a criminal offence. In accordance with Article 19 of the Criminal Code, criminal liability arises only for socially dangerous acts and the socially dangerous consequences that have occurred in respect of which guilt has been established. The infliction of harm without fault excludes criminal liability.

Legal entities are not subject to criminal liability and, consequently, punishment cannot be imposed on them. The criminal liability of accomplices to a criminal offence is not collective; each accomplice bears liability only for their own actions (or omissions), depending on the nature and degree of their actual participation in the criminal offence committed.

This also applies to cases involving involvement in a crime. Thus, the Criminal Code of the Republic of Kazakhstan contains provisions establishing liability for involvement in a criminal offence: the acquisition or sale, without prior promise, of property known to have been obtained by criminal means (Article 196 of the Criminal Code); and the concealment, without prior promise, of a corruption-related crime, a serious or especially serious crime, or a crime against the sexual inviolability of a minor (Article 432 of the Criminal Code). These acts are not causally connected with the criminal offence committed and do not constitute a form of aiding and abetting, that is, they do not constitute complicity. Liability for them arises because they independently contain the elements of a separate criminal offence, which gives rise to criminal liability. The social danger of these acts lies in the fact that they obstruct law enforcement agencies in searching for, exposing and bringing to justice persons guilty of committing criminal offences.

Taken together, these characteristics determine the legal nature of punishment, its role and place in the system of measures aimed at addressing criminal offences, and make it possible to distinguish criminal punishment from other criminal-law measures, as well as from all other coercive measures applied by the State, both substantive legal and procedural.

Punishment consists of the deprivation or restriction of the rights and freedoms of a guilty person as provided for by law. The rights and freedoms of individuals and citizens are enshrined in Articles 10–33 of the Constitution of the Republic of Kazakhstan. In accordance with paragraph 1 of Article 39 of the Constitution of the Republic of Kazakhstan, the rights and freedoms of individuals and citizens may be restricted only by laws and only to the extent necessary for the protection of the constitutional order, public order, the rights and freedoms of individuals, and the health and morality of the population.

Punishment differs from other types of legal liability (administrative, civil, disciplinary, etc.) by the greater extent to which it deprives or restricts rights and freedoms.

Different types of punishment differ precisely in their content. A person convicted of committing a criminal offence may also lose other benefits (family relationships, the respect of others, etc.), but these do not form part of the content of punishment, since the necessity of depriving a person of them is not specified by law. This point was emphasised by the well-known Russian jurist N.S. Tagantsev: “It is necessary to distinguish from punishment the moral suffering and pangs of conscience experienced by a criminal, even if they are so intense that, in order to put an end to them and atone for their guilt, the person hastens to surrender into the hands of justice. It is also necessary to distinguish from punishment the changes in the attitude towards the guilty person on the part of their family, acquaintances and society caused by the crime, the loss of love, respect and trust, even when such a loss takes an external and tangible form: a father's curse will not constitute punishment in the legal sense, even if it is accompanied by the drawing up of a will by an angry father depriving his guilty son of an inheritance; nor will expulsion from one's home, refusal to shake hands, defeat in elections, etc., constitute punishment, provided that none of these deprivations involves a legal restriction of the individual or their rights.”

The elements of criminal offences that give rise to criminal liability and for which punishment is imposed are provided for exclusively by the Criminal Code of the Republic of Kazakhstan; other laws are applicable only after their incorporation into the Criminal Code (Part 1 of Article 1 of the Criminal Code). In accordance with Part 1 of Article 10 of the Criminal Code, “Criminal offences, depending on their degree of social danger and punishability, are divided into crimes and criminal misdemeanours.” Criminal punishment is applied both for crimes and for criminal misdemeanours and is expressed in strictly defined types and amounts established by the current criminal legislation.

When discussing the essence of punishment, it should be borne in mind that, for several centuries, the prevailing view in the theory and practice of applying criminal law was that punishment constituted an act of retribution for a crime committed. The idea of retribution cannot serve as the basis for explaining the essence of punishment in modern criminal law. However, completely denying the retributive nature of punishment would hardly be justified.

In essence, criminal punishment is a form of punitive suffering, that is, it causes suffering to a person who has committed a criminal offence. Such suffering may be physical, moral, material or of another nature. For example, when a person is sentenced to imprisonment, the convicted person is deprived of a number of personal rights and, above all, loses their liberty and is separated from their family. They lose their job and income. When confiscation of property, a fine or corrective labour is imposed, the convicted person is deprived of material benefits.

The social essence of punishment is largely determined by the objectives that society and the State set for criminal legislation and by the purposes of punishment established therein.

An important component of the concept of punishment is the definition of its purposes—that is, the ultimate actual results that the State seeks to achieve when establishing criminal liability, convicting a person guilty of committing a criminal offence, sentencing that person to a particular punishment and applying that measure.

A purpose is an ideal, mental anticipation of the result of an activity.

The purposes of punishment clearly reveal the direction of the State's criminal policy and the content of the punitive and educational elements of criminal liability. Moreover, the purpose of punishment serves as the basis for determining the degree and types of punishment, constructing the sanctions of the Special Part of the Criminal Code of the Republic of Kazakhstan, determining the procedure for imposing and granting exemption from punishment, and resolving other issues of criminal liability. Within the framework of the purposes of punishment, the significance of mitigating and aggravating circumstances, the personality of the offender and other characteristics of the criminal offence committed becomes apparent.

It may be said that the purposes of punishment determine the limits within which the State may apply coercive measures to persons who have committed criminal offences.

Part 2 of Article 39 of the current Criminal Code provides: “Punishment is applied for the purposes of restoring social justice, as well as reforming the convicted person and preventing the commission of new criminal offences both by the convicted person and by other persons. Punishment is not intended to cause physical suffering or to humiliate human dignity.” Thus, Part 2 of the article under consideration establishes three purposes of punishment: a) restoration of social justice; b) reformation of the convicted person; c) prevention of the commission of new criminal offences both by the convicted person and by other persons.

Restoration of social justice. The essence of this purpose lies in imposing punishment whose severity, in terms of the deprivations and restrictions involved, corresponds to the gravity of the criminal offence committed and the personality of the guilty person. The restoration of social justice is necessary in order to foster, among victims and their relatives, state and other authorities, and society as a whole, confidence in their protection and in the strict observance of the law, as well as respect for it.

The restoration of social justice as a purpose of punishment presupposes, to a certain extent, an element of retribution. The question of retribution as a purpose of punishment is one of the most controversial issues in the science of criminal law. When examining the purpose of criminal punishment in the form of social justice, some scholars reduce it to retribution. Other authors consider them to be different concepts.

It seems to me that the terms “retribution” and “restoration of social justice” cannot be interpreted as synonymous, since retribution may serve as a means of restoring social justice. Criminal-law literature contains no consensus among scholars on the question of whether retribution is one of the purposes of punishment. There are both supporters and opponents of recognising retribution as a purpose of punishment.

Without going into the details of this debate, I would like to note the following: retribution cannot be the ultimate purpose of punishment, since in that case punishment would be imposed for the sake of punishment itself, which would be meaningless; it is not the principal purpose of punishment but has subordinate significance and serves as a means of achieving other purposes; every punishment is always associated with certain deprivations or restrictions, that is, with punitive suffering. Something that does not possess the characteristic of punitive suffering and is incapable of causing suffering cannot constitute punishment.

Cesare Beccaria wrote: “The purpose of punishment is neither to torture and torment a human being nor to undo a crime that has already been committed. The purpose of punishment is solely to prevent the guilty person from harming society again and to deter others from committing the same offence.”

By imposing punishment on a guilty person, the court, on behalf of the State, takes measures to restore social justice. The restoration of social justice also means compensation for damage, both in relation to an individual victim and to society as a whole. By exercising its right to punish a guilty person and thereby restore the social justice violated by that person, the State simultaneously upholds the authority of the criminal law and fosters respect for it.

In accordance with paragraph 1 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated 25 June 2015, “On Certain Issues of Sentencing”, when imposing criminal punishment, courts must strictly comply with the general rules for sentencing set out in Article 52 of the Criminal Code of the Republic of Kazakhstan and take into account the category of gravity of the criminal offence, the existence and type of recidivism, the stage at which the criminal offence was committed, the degree of the defendant's participation in the commission of the criminal offence, the significance of their actions in achieving the purpose of the criminal offence and their influence on the nature and amount of the damage caused or that could have been caused, whether there is a concurrence of criminal offences, the existence of circumstances mitigating or aggravating liability and punishment, and the grounds for imposing a punishment less severe than that prescribed for the criminal offence in question.

Reformation of the convicted person. In accordance with subparagraph 10) of Article 3 of the Penal Enforcement Code of the Republic of Kazakhstan, the reformation of a convicted person involves developing in that person law-abiding behaviour and a positive attitude towards the individual, society, work, and the norms, rules and ethics of behaviour in society.

The purpose of reforming the convicted person presupposes the State's intention, through the application of punishment, to change the convicted person in a positive direction by developing in that person's mind a negative attitude towards criminal forms of behaviour, a positive attitude towards generally accepted fundamental rules of conduct, and a willingness to behave in accordance with those rules.

According to Part I of Article 7 of the Penal Enforcement Code, the principal means of reforming convicted persons are:

imposition of a fair punishment;

the regime for serving the sentence;

educational influence;

maintenance of positive social ties;

socially useful labour;

obtaining primary, basic secondary, general secondary, technical and vocational education;

public influence.

Prevention of the commission of new criminal offences both by the convicted person and by other persons. Depending on the focus of this purpose and the mechanism through which it is achieved, the purpose of preventing the commission of new criminal offences both by the convicted person and by other persons should be divided into special (individual) prevention and general prevention.

Special (individual) prevention is aimed at preventing convicted persons from committing new criminal offences. This purpose of punishment is achieved through moral influence on the offender and by depriving that person of the physical ability to commit a new criminal offence.

The purpose of special (individual) prevention of criminal offences is effectively achieved only if the convicted person is given a fair punishment.

Special prevention can have a deterrent effect only when the convicted person is convinced that the punishment imposed is fair.

The means of special (individual) prevention of criminal offences include restoration of social justice, corrective influence on the convicted person, deprivation, restriction, substitution and supplementation of the rights, duties and legitimate interests of the convicted person, the inevitability of enforcement of criminal punishment in respect of convicted persons, and so forth.

Unlike the purpose of special (individual) prevention, the purpose of general prevention is to prevent other persons from committing criminal offences. The punishment imposed on a person convicted of committing a criminal offence must also have an impact on other persons.

The general preventive effect of punishment is not selective in nature, as it affects the entire population capable of correctly understanding the meaning of punishment.

The means of general prevention of criminal offences as a purpose of criminal punishment include restoration of social justice, deprivation, restriction, substitution and supplementation of the rights, duties and legitimate interests of the convicted person, corrective influence on the convicted person, elimination of criminal conduct through the legislative establishment of punishment for criminal acts, imposition of punishment on a convicted person for the criminal offence committed, and the inevitability of applying criminal punishment to convicted persons.

Paragraph 6 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated 20 April 2018, “On the Court Judgment”, states: “A guilty verdict shall be rendered if the court has indisputably established that a criminal offence has been committed, that the criminal offence was committed by the defendant, that the defendant is guilty of committing it, and that their guilt is confirmed by evidence collected in compliance with the requirements of the law. At the same time, there must be no grounds for terminating proceedings in the case or for referring the case to the prosecutor as provided for in Article 323 of the Criminal Procedure Code. A person's guilt in committing a criminal offence shall be recognised as proven only where the court, guided by the presumption of innocence, having examined all the evidence directly and interpreted all unresolved doubts in favour of the defendant, has answered all the questions specified in Article 390 of the Criminal Procedure Code within the framework of due legal procedure.”

A guilty verdict imposing criminal punishment to be served by the convicted person is rendered in respect of a person guilty of committing a criminal offence, provided that the person is liable to punishment for the criminal offence committed and there are no obstacles to its imposition and execution.

In conclusion, I would like to note the following: the study has established that the current rules for calculating terms when substituting criminal punishments do not meet the purposes and principles of criminal legislation. Thus, under Article 73 of the Criminal Code, imprisonment may be substituted with a fine at the rate of 4 (four) days of imprisonment for 1 (one) monthly calculation index (MCI). The reverse substitution of a fine with imprisonment is carried out at the rate of 4 (four) MCI for 1 (one) day of imprisonment. This leads to convicted persons evading punishment.

For example, on 17 July 2019, B. was convicted under subparagraph 2) of Part 4 of Article 189 of the Criminal Code (misappropriation on an especially large scale) and sentenced to 7 (seven) years of imprisonment (of which 22 days had been served). On 9 August 2019, he was granted a pardon by Presidential Decree, and the unserved portion of his sentence was substituted with a fine. On the same day, the court recalculated the unserved term of imprisonment (2,528 days) into a fine, which amounted to 1,595,800 tenge (1 year of imprisonment — 230,000 tenge; 5 years — 1.1 million tenge; 10 years — 2.3 million tenge). Due to non-payment of the fine, the judicial enforcement officer submitted a motion to the court seeking substitution of the punishment. On 16 October 2019, when the court recalculated the fine in the reverse order, the term of imprisonment amounted to 5 months and 8 days (158 days). The recalculation procedure for terms prescribed by the Criminal Code results in a lengthy term of imprisonment being substituted with an insignificant fine, which, in turn, may be substituted with an even shorter term of imprisonment. This does not serve the purposes of criminal punishment: restoration of social justice, reformation of the convicted person and prevention of new offences.

The legislator must eliminate this gap in the legislation.

Commentary to the Criminal Code of the Republic of Kazakhstan, 2021, by Isidor Shamilovich Borchashvili, Honoured Figure of Kazakhstan, Doctor of Law, Professor, Academician of the Kazakhstan National Academy of Natural Sciences, Member of the Scientific Advisory Councils under the Constitutional Council of the Republic of Kazakhstan and the Supreme Court of the Republic of Kazakhstan, Member of the Working Group on Reform of the Law Enforcement System under the Security Council of the Republic of Kazakhstan, Honoured Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.

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