Commentary on Article 40. Types of Punishments of the Criminal Code of the Republic of Kazakhstan
1. The following principal punishments may be imposed on a person found guilty of committing a criminal misdemeanor:
1) a fine;
2) corrective labor;
3) community service;
4) arrest;
5) expulsion from the Republic of Kazakhstan of a foreign national or a stateless person.
2. The following principal punishments may be imposed on a person found guilty of committing a crime:
1) a fine;
2) corrective labor;
2-1) community service;
3) restriction of liberty;
4) deprivation of liberty;
5) the death penalty. Excluded by Law of the Republic of Kazakhstan dated December 29, 2021 No. 89-VII.
3. The following additional punishments may be imposed on a person found guilty of committing a criminal offense, in addition to the principal punishment:
1) confiscation of property;
2) deprivation of a special, military or honorary title, class rank, diplomatic rank, qualification class, and state awards;
3) deprivation of the right to hold a certain position or engage in a certain activity;
3-1) deprivation of citizenship of the Republic of Kazakhstan;
4) expulsion from the Republic of Kazakhstan of a foreign national or a stateless person.
The provision under consideration sets out a list of types of punishment that constitute the system of punishments, structured according to the principle of progression from the least severe type of punishment to the most severe. This principle is consistent with the general principles governing the imposition of punishment, which provide that the most severe type of punishment may be imposed only in cases where a less severe type of punishment cannot ensure the achievement of the purposes of punishment.
The list presented is exhaustive and is not subject to broad interpretation. A court may not impose on a convicted person a punishment that is not specified in the relevant list.
Depending on the procedure for their imposition, all types of criminal punishment are classified as principal and additional. It should be noted that amendments and additions were made to Article 40 of the Criminal Code by the Laws of the Republic of Kazakhstan dated July 11, 2017, July 12, 2018, and January 21, 2019.
In particular, “expulsion from the Republic of Kazakhstan of a foreign national or a stateless person” was additionally introduced as a principal punishment for a criminal misdemeanor, while “community service” was included as a principal punishment for committing a crime (Parts 1 and 2 of Article 40 of the Criminal Code). “Deprivation of citizenship of the Republic of Kazakhstan” was introduced as an additional punishment.
Principal punishments are types of punishment provided for by criminal law that are intended to play the primary role in achieving the objectives pursued by punishment. They are specified in the sanctions of the articles of the Special Part of the Criminal Code of the Republic of Kazakhstan concerning all criminal offenses and are imposed by the court whenever it concludes that it is necessary to impose punishment on the guilty person.
Principal punishments are imposed by the court only where they are provided for in the sanctions and, solely in exceptional cases expressly stipulated by law, may be applied even in the absence of a reference to them in the sanctions, by way of substitution for another punishment (Article 64 “Revocation of Conditional Conviction,” Article 65 “Exemption from Criminal Liability in Connection with Active Repentance,” Article 80 “Criminal Liability of Minors,” Article 81 “Types of Punishments Imposed on Minors,” Article 82 “Imposition of Punishment on a Minor,” Article 84 “Compulsory Educational Measures,” Article 85 “Content and Duration of the Application of Compulsory Educational Measures”).
The following principal punishments are imposed on a person found guilty of committing a criminal misdemeanor: 1) a fine, 2) corrective labor, 3) community service, 4) arrest, 5) expulsion from the Republic of Kazakhstan of a foreign national or a stateless person (Part 1 of Article 40 of the Criminal Code).
The following principal punishments are imposed on a person found guilty of committing a crime: 1) a fine, 2) corrective labor, 2-1) community service, 3) restriction of liberty, 4) deprivation of liberty, 5) the death penalty (Part 2 of Article 40 of the Criminal Code).
Additional punishments are types of punishment provided for by criminal law that impose an additional burden and perform a supporting role in achieving the objectives pursued by punishment. They are specified in the sanctions not for all criminal offenses, but only for certain ones; in some cases, they are mandatory, while in others they are optional (not mandatory). Such punishments are imposed by the court only in addition to principal punishments, in cases where, taking into account the circumstances of the case and the personal characteristics of the guilty person, it is necessary to strengthen the punitive and (or) educational and preventive capabilities of the principal measure of punishment and give it the specific direction required for the more successful achievement of the purposes of punishment.
The following additional punishments may be imposed on a person found guilty of committing a criminal offense, in addition to the principal punishment: 1) confiscation of property; 2) deprivation of a special, military or honorary title, class rank, diplomatic rank, qualification class, and state awards; 3) deprivation of the right to hold a certain position or engage in a certain activity; 3-1) deprivation of citizenship of the Republic of Kazakhstan; 4) expulsion from the Republic of Kazakhstan of a foreign national or a stateless person (Part 3 of Article 40 of the Criminal Code).
It should be noted that the proper combination of principal and additional punishments contributes to the consistent implementation of the principle of individualization of punishment and to the more successful achievement of the purpose of punishment. In this regard, when passing a judgment in each case, courts should consider the necessity of imposing additional punishments, particularly in relation to persons found guilty of committing serious, especially serious, terrorist, extremist and corruption-related crimes.
The system of punishments under the 2014 Criminal Code of the Republic of Kazakhstan underwent significant changes. With the introduction into criminal law of a two-tier system of criminally punishable acts, consisting of crimes and criminal misdemeanors, the system of punishments was also divided into two groups: punishments imposed for committing a criminal misdemeanor and punishments imposed for committing crimes.
A fine, corrective labor and community service are imposed both for criminal misdemeanors and for crimes. Arrest is applied only for criminal misdemeanors, whereas restriction of liberty, deprivation of liberty and the death penalty are applied only for crimes.
New types of additional punishment for criminal misdemeanors were introduced: expulsion from the Republic of Kazakhstan of a foreign national or a stateless person, and deprivation of citizenship of the Republic of Kazakhstan.
It should be borne in mind that expulsion from the Republic of Kazakhstan of a foreign national or a stateless person for committing a crime may be imposed as an additional type of punishment, whereas for committing a criminal misdemeanor it may be imposed as either a principal or an additional type of punishment.
When the court enforces this type of punishment as an additional punishment, it is enforced after the person has served the principal punishment or has been released from further service thereof on the grounds provided for in subparagraphs 3), 5), 6) and 7) of Part 1 of Article 161 of the Penal Enforcement Code of the Republic of Kazakhstan; in cases involving conditional conviction, it is enforced from the moment the judgment enters into legal force.
The system of punishments was substantially revised, with an emphasis on the broader application of measures alternative to deprivation of liberty. Thus, the scope of application of fines was expanded to cover virtually all minor and medium-gravity crimes not involving the death of a person.
The content and procedure for the execution of corrective labor were changed. It was established as the closest alternative to a fine and is calculated as a specific monetary amount payable to the state budget.
The scope of application of such a type of punishment as restriction of liberty was extended to all minor and medium-gravity crimes, as well as to some serious crimes. This punishment provides for the convicted person to remain under probation supervision and to be engaged in socially useful labor, which will make it possible to strengthen the correction of post-criminal behavior.
Deprivation of liberty as the sole type of punishment has been retained only for crimes committed as part of criminal groups; crimes involving the death of a person; especially serious crimes, including terrorist and corruption-related crimes, as well as military crimes committed during wartime or in a combat situation, and serious crimes.
Commentary of 2021 to the Criminal Code of the Republic of Kazakhstan, by Isidor Shamilovich Borchashvili, Honored 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, Honored Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.
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