Commentary on Article 52. General Principles of Sentencing of the Criminal Code of the Republic of Kazakhstan
1. A person found guilty of committing a criminal offence shall be sentenced to a fair punishment within the limits established by the relevant Article of the Special Part of this Code and taking into account the provisions of the General Part of this Code.
2. A person who has committed a criminal offence must be sentenced to a punishment that is necessary and sufficient for their rehabilitation and the prevention of new criminal offences. A more severe type of punishment from among those prescribed for the criminal offence committed shall be imposed only if a less severe type of punishment cannot ensure the achievement of the purposes of punishment. A more severe punishment than that provided for the criminal offence committed by the relevant Articles of the Special Part of this Code may be imposed on the basis of the aggregate of criminal offences or the aggregate of sentences in accordance with Articles 58 and 60 of this Code. The grounds for imposing a less severe punishment than that provided for the criminal offence committed by the relevant Articles of the Special Part of this Code are determined by Article 55 of this Code.
3. When imposing a punishment, the nature and degree of public danger of the criminal offence, the personality of the offender, including their conduct before and after committing the criminal offence, circumstances mitigating and aggravating liability and punishment, as well as the impact of the punishment imposed on the rehabilitation of the convicted person and on the living conditions of their family or persons dependent on them, shall be taken into account.
The imposition of a lawful, well-founded and fair punishment is an important means of combating crime and strengthening law and order. It ensures the necessary punitive impact, contributes to the restoration of social justice, the rehabilitation of convicted persons, and the prevention of criminal offences by both convicted persons and other individuals.
The provision under consideration sets out the fundamental guiding ideas and principles that must be followed when determining the measure of an offender's liability to society. The regulatory basis for resolving this issue is the Resolution of the Plenum of the Supreme Court of the Republic of Kazakhstan dated 30 April 1999, “On Compliance by Courts with the Lawfulness of Sentencing”.
An examination of the content of the Article under consideration shows that it incorporates all the principal institutions of criminal law (for example, the elements of a criminal offence, stages of a criminal offence, the institution of complicity, etc.). When imposing a punishment, the court is guided by such principles of criminal law as legality, humanity, justice and individualisation of punishment. These principles follow from the meaning of Article 52 of the Criminal Code of the Republic of Kazakhstan.
The principle of legality in sentencing is manifested in the fact that the court imposes punishment strictly within the limits established by the sanction of the Article of the law providing for liability for the criminal offence committed. The limits of these sanctions are entirely sufficient to take into account the individual characteristics of specific criminal offences and the personality of the offender.
When imposing a punishment, the court must strictly comply with the provisions of the General Part of the Criminal Code of the Republic of Kazakhstan. This means that, when deciding on the selection of the type and extent of punishment, the court is obliged to:
a) establish whether the act committed constitutes a criminal offence, that is, whether it corresponds to the elements specified in Part 1 of Article 9 of the Criminal Code (public danger, unlawfulness, culpability and punishability). The court must determine whether the elements specified in Part 2 of Article 9 of the Criminal Code of the Republic of Kazakhstan are present, where an act or omission formally contains the characteristics of an act provided for by the Special Part of the Criminal Code of the Republic of Kazakhstan but, owing to its insignificance, does not constitute a public danger, that is, has not caused harm or created a threat of harm to an individual, society or the State and, consequently, does not constitute a criminal offence.
b) establish whether, in the particular case, there are circumstances that exclude the public danger of the act and, consequently, liability and punishability (necessary self-defence – Article 32 of the Criminal Code of the Republic of Kazakhstan; causing harm when detaining a person who has committed an unlawful attack – Article 33 of the Criminal Code of the Republic of Kazakhstan; extreme necessity – Article 34 of the Criminal Code of the Republic of Kazakhstan, etc.);
c) establish that there are no grounds requiring the person who committed the criminal offence to be released from punishment (release from punishment due to illness – Article 73 of the Criminal Code of the Republic of Kazakhstan; release from punishment and deferment of serving a sentence due to extraordinary circumstances – Article 74 of the Criminal Code of the Republic of Kazakhstan, etc.);
d) take into account the degree to which the criminal intent was carried out and the reasons why the criminal offence was not completed (Article 24 of the Criminal Code), proceeding from the fact that the closer the criminal result is to occurring, the greater the public danger of the act;
e) take into account the degree and nature of the person's participation in the commission of the criminal offence (Articles 28 and 29 of the Criminal Code);
f) strictly observe the procedure for applying various types of punishment (the system of punishments, their division into principal and additional punishments – Article 39 of the Criminal Code; restrictions on the application of various types of punishment – Articles 40–51 of the Criminal Code). Courts may apply particular types of punishment only in strict compliance with the procedure and conditions for applying such types of punishment established by legislation.
The principle of humanity in sentencing is manifested in the following:
a) when selecting a specific measure of punishment, the court does not pursue the aim of causing physical suffering to the offender or humiliating their human dignity (Article 38 of the Criminal Code);
b) the application of such types of punishment as the death penalty and deprivation of liberty is restricted;
c) in the presence of exceptional circumstances, the court may impose a more lenient punishment than that prescribed for the criminal offence in question (Article 55 of the Criminal Code);
d) the court has no right to impose a punishment more severe than the maximum provided for by the sanction of the relevant Article of the Special Part of the Criminal Code;
e) where sufficient grounds exist, the court makes extensive use of suspended sentences (Article 63 of the Criminal Code).
The principle of individualisation of punishment when imposing a sentence consists in the court, on the basis of the law and justice, selecting a specific measure of punishment that corresponds to the nature and degree of public danger of the act committed and the personality of the particular offender, taking into account the individual characteristics of the offender and the circumstances of the case that mitigate or aggravate liability.
When imposing punishment on an offender, the court has no right, at its own discretion, to assign criminal offences any assessment other than that provided for by law. Thus, determining the nature of the public danger of a particular criminal offence is the prerogative of the legislator, whereas determining the degree of public danger of a criminal offence is the prerogative of the court. The nature of the public danger of a criminal offence is determined by its classification into a particular category of severity in accordance with Article 10 of the Criminal Code of the Republic of Kazakhstan, while the determination of the degree of public danger of a criminal offence depends on the aggregate of all other circumstances, namely, the circumstances under which the particular criminal offence was committed.
The degree of public danger is a characteristic of a specific criminal act. Criminal offences that are identical in terms of the nature of their public danger may differ in the degree of their public danger.
The degree of public danger depends on the amount and nature of the damage caused to the object of the criminal offence, as well as to other objects, the method of committing the criminal offence, the nature and degree of guilt, the motive, purpose, etc. For example, the theft of property worth 3,000 tenge has a lower degree of danger than the theft of property worth 12,000 tenge; murder committed out of revenge has a greater degree of danger than murder committed during a fight initiated by the victim, etc., although the criminal offences concerned are identical in terms of the nature of their public danger, which is legally reflected in their identical classification (Part 1 of Article 175, Part 1 of Article 96 of the Criminal Code of the Republic of Kazakhstan).
In the Resolution of the Plenum of the Supreme Court of the Republic of Kazakhstan dated 30 April 1999, “On Compliance by Courts with the Lawfulness of Sentencing”, the following explanations are provided on this matter:
“When determining the degree of public danger of the criminal offence committed, courts should proceed both from the requirements of Article 10 of the Criminal Code, which regulates the procedure for determining the severity of criminal offences, and from the aggregate of all circumstances under which the specific criminal act was committed (form of guilt, motives, method, circumstances and stage of commission of the criminal offence, severity of the consequences that occurred, degree and nature of participation of each defendant in the commission of the criminal offence, etc.).”
Part 3 of Article 52 of the Criminal Code of the Republic of Kazakhstan also specifically emphasises the need to take into account the “personality of the offender” when the court determines a fair punishment.
The need to take the personality of the offender into account when imposing punishment presupposes consideration of the social and psychobiological characteristics inherent exclusively to that individual.
In the theory of criminal law, social characteristics are understood as the system of life values of a given individual and the type and degree of distortion of their individual consciousness. Psychobiological characteristics include the person's mental state, age, physical health and other factors. At the same time, only those factors that influence the assessment of the criminal offence committed and the person who committed it have significance under criminal law.
During the consideration of a criminal case, the court must establish the defendant's attitude towards education and work; their conduct at work and in everyday life; family status; state of health; information concerning the existence of previous convictions; and a number of other circumstances that must be taken into account when imposing punishment. This is indicated in paragraph 3 of the Resolution of the Plenum of the Supreme Court of the Republic of Kazakhstan dated 30 April 1999, “On Compliance by Courts with the Lawfulness of Sentencing”.
When imposing punishment, the circumstances mitigating and aggravating criminal liability and punishment, as provided for in Articles 53 and 54 of the Criminal Code of the Republic of Kazakhstan, must also be taken into account.
The fairness of punishment is one of the requirements of criminal legislation. The fairness of punishment is an expression of humanism inherent in our society.
Only punishment that not only ensures the rehabilitation of the offender but also protects the rights and security of all members of society, safeguarding them against criminal encroachments, can be considered fair. Every offender must be subjected only to the punishment that they deserve. The court must convincingly demonstrate to society the fairness of the punishment.
Each of the requirements constituting the general principles of sentencing has independent significance when imposing punishment, while their combined application ensures the fairness of the punishment.
When imposing a particular type of punishment, the court must assess its anticipated impact on the convicted person and determine whether the selected type and extent of punishment are sufficient to rehabilitate the convicted person. Therefore, one of the elements of the system of general principles of sentencing is the requirement to take into account, when imposing punishment, the impact of the punishment imposed on the rehabilitation of the convicted person and on the living conditions of their family.
The punishment imposed on the offender must contribute to deterring them from committing a new criminal offence and to their return to socially useful activities.
The punishment imposed affects not only the convicted person but also their family, both in terms of the moral and psychological climate and the material conditions of its existence. In paragraph 3 of the Resolution of the Plenum of the Supreme Court of the Republic of Kazakhstan dated 30 April 1999, “On Compliance by Courts with the Lawfulness of Sentencing”, the following is stated in this regard:
“Having established the defendant's family circumstances, courts must, in accordance with Part 3 of Article 52 of the Criminal Code, take into account, when imposing punishment, the impact of the punishment imposed on the living conditions of their family or persons dependent on them.”
Commentary to the Criminal Code of the Republic of Kazakhstan (2007), by I.Sh. Borchashvili, Honoured Worker of Kazakhstan, Doctor of Law, Professor, Academician of the National Academy of Natural Sciences of Kazakhstan.
Date of amendment of the act: 02.08.2007Date of adoption of the act: 02.08.2007Place of adoption: NONEBody that adopted the act: 180000000000Registration number of the regulatory legal act assigned by the rule-making body: 167Status of the act: newScope of legal relations: 028000000000Form of the act: COMMENTARYLegal force: 1900Language of the act: Russian
Criminal Code, Commentaries on the Criminal Code, Normative Resolution of the Supreme Court, Criminal Legislation, Regulatory Legal Acts of the Republic of Kazakhstan
