Commentary on Article 52. General Principles of Sentencing under the Criminal Code of the Republic of Kazakhstan

1. A person found guilty of committing a criminal offence shall be sentenced fairly, 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 shall 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 provided for the criminal offence committed shall be imposed only if a less severe type of punishment cannot ensure the achievement of the objectives of punishment. A more severe punishment than that provided for the act committed by the relevant Articles of the Special Part of this Code may be imposed in cases of cumulative criminal offences or cumulative sentences in accordance with Articles 58 and 60 of this Code. The grounds for imposing a less severe punishment than that provided for the act 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 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.

According to Article 75 of the Constitution of the Republic of Kazakhstan, judicial power shall be exercised exclusively by the courts. Only the court is vested with the right to make a final determination as to whether a person is guilty of committing a criminal offence and to impose punishment for it. Judicial power is exercised on behalf of the Republic of Kazakhstan and is intended to protect the rights and legitimate interests of citizens and organizations, including those persons upon whom punishment is imposed for committing a criminal offence.

The court imposes punishment based on its objectives, in strict accordance with criminal legislation and within the limits established by the sanction of the Criminal Code of the Republic of Kazakhstan, which provides for liability for the criminal offence committed.

The imposition of lawful, well-founded and fair punishment is an important means of combating crime and strengthening law and order. It ensures the necessary punitive effect, contributes to the restoration of social justice, the rehabilitation of convicted persons, and the prevention of criminal offences both by convicted persons themselves and by other individuals.

According to subparagraph 52) of Article 7 of the Criminal Procedure Code, a judgment is a court decision rendered by a court of first instance or appellate instance on the issue of the guilt or innocence of the accused and the application or non-application of punishment to them.

When adopting the decisions provided for in subparagraphs 4) and 5) of part 1 of Article 431 of the Criminal Procedure Code, the appellate court shall issue a ruling annulling the judgment (decision) of the court of first instance and shall subsequently render a new judgment in compliance with the requirements of Chapter 46 of the Criminal Procedure Code.

A judgment is binding upon all state bodies, local self-government bodies, legal entities, officials and citizens without exception and is subject to strict enforcement.

The pronouncement of a judgment on behalf of the State and its significance require judges to recognize their special responsibility for its legality and validity.

A judgment is lawful if it has been rendered by a legally constituted court, in compliance with the rules of jurisdiction, in strict accordance with the requirements of criminal procedural law governing the procedure for judicial proceedings, on the basis of the adversarial principle and equality of the parties, ensuring their equal access to the examination of evidence, provided that the rules of law have been correctly applied.

The validity of a judgment means that it is based on evidence collected in compliance with the requirements of the law and directly examined fully, objectively and comprehensively during the court hearing, that such evidence has been analyzed and duly assessed, and that the court's conclusions are reasoned.

In order to fully disclose the content of the decisions adopted by the court, the judgment must comply, both in form and in substance, with the requirements of Articles 395, 396, 397, 398, 399, 400 and 401 of the Criminal Procedure Code.

According to part 1 of Article 52 of the Criminal Code, a person found guilty of committing a criminal offence shall be sentenced fairly, within the limits established by the relevant Article of the Special Part of the Criminal Code and taking into account the provisions of the General Part of the Criminal Code.

The provision under consideration sets out the fundamental guiding principles and rules that must be followed when determining the measure of an offender's liability to society. When imposing punishment, the court is guided by such principles of criminal law as legality, humanity, justice and individualization of punishment. These principles follow from the meaning of Article 52 of the Criminal Code.

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 provision of law prescribing liability for the criminal offence committed. The limits of these sanctions are fully sufficient to take into account the individual characteristics of specific criminal offences and the personality of the offender.

When imposing 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 amount of punishment, the court is required to:

establish whether the act committed constitutes a crime or a criminal misdemeanour, that is, whether it corresponds to the elements specified in parts 2 and 3 of Article 10 of the Criminal Code (public danger, criminal unlawfulness, guilt and punishability); determine whether the act contains the features specified in part 4 of Article 10 of the Criminal Code, where an action or omission formally contains the elements of an act provided for in the Special Part of the Criminal Code but, due to its insignificance, does not constitute a public danger;

determine whether, in the particular case, there are circumstances that exclude the public danger of the act and, consequently, criminal liability and punishability (necessary self-defence — Article 32 of the Criminal Code; causing harm when apprehending a person who has committed an unlawful encroachment — Article 33 of the Criminal Code; extreme necessity — Article 34 of the Criminal Code, etc.);

establish that there are no grounds for releasing the person from criminal liability where a person who has committed a criminal offence may (or must) be released from criminal liability (release from criminal liability in connection with active repentance — Article 65 of the Criminal Code; release from criminal liability in cases of exceeding the limits of necessary self-defence — Article 66 of the Criminal Code; release from criminal liability upon fulfilment of the terms of a procedural agreement — Article 67 of the Criminal Code; release from criminal liability in connection with reconciliation — Article 68 of the Criminal Code; release from criminal liability due to a change in circumstances — Article 70 of the Criminal Code; release from criminal liability upon expiration of the limitation period — Article 71 of the Criminal Code);

establish that there are no grounds requiring the person who committed a criminal offence to be released from punishment (release from punishment subject to the establishment of a surety — Article 69 of the Criminal Code; release from punishment due to illness — Article 75 of the Criminal Code; release from punishment and deferment of the execution of punishment due to a combination of difficult circumstances — Article 76 of the Criminal Code; release from serving a sentence due to expiration of the limitation period for an enforceable conviction — Article 77 of the Criminal Code; release from criminal liability and punishment on the basis of an amnesty or pardon act — Article 78 of the Criminal Code);

take into account the degree to which the criminal intent was carried out and the reasons why the crime was not completed (preparation for a crime and attempted crime — 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;

take into account the degree and nature of the person's participation in the commission of the criminal offence (types of accomplices in a criminal offence — Article 28 of the Criminal Code; liability of accomplices in a criminal offence — Article 29 of the Criminal Code);

strictly observe the procedure for applying various types of punishment (the system of punishments and their division into principal and additional types — Article 40 of the Criminal Code; the procedure and restrictions governing the application of various types of punishment — Articles 41–51 of the Criminal Code). Courts may apply particular types of punishment only in strict compliance with the procedure and conditions for their application established by law.

The principle of humanity in sentencing is manifested in the following:

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 39 of the Criminal Code);

the application of such types of punishment as the death penalty and deprivation of liberty is restricted;

in the presence of exceptional circumstances, the court may impose a more lenient punishment than that provided for the crime in question (Article 55 of the Criminal Code);

the court has no right to impose a punishment more severe than the maximum sanction provided for by the relevant Article of the Special Part of the Criminal Code;

a more severe punishment than that provided for by the relevant Articles of the Special Part of the Criminal Code for the act committed may be imposed in cases of cumulative criminal offences or cumulative sentences in accordance with Articles 58 and 60 of the Criminal Code (part 2 of Article 52 of the Criminal Code);

where sufficient grounds exist, the court makes extensive use of conditional sentencing (Article 63 of the Criminal Code).

Furthermore, the imposition of fair punishment on a guilty person is one of the fundamental principles and a mandatory condition of the administration of justice. From a legal perspective, fair punishment is punishment based on the law, following a full, objective and comprehensive examination of the circumstances of the case and the correct legal classification of the criminal offence, and imposed taking into account the personality of the offender and all mitigating and aggravating circumstances of the case. The principle of imposing fair punishment means that the type and amount of punishment imposed on the guilty person must not be excessively lenient or excessively severe. Thus, in accordance with part 1 of Article 438 of the Criminal Procedure Code, punishment that is inconsistent with the gravity of the criminal offence and the personality of the convicted person is recognized as punishment that has been imposed without taking into account the general principles of sentencing and, although it does not exceed the limits provided for by the sanction of the relevant Article of the Criminal Code of the Republic of Kazakhstan, is nevertheless unfair in its type and amount due to excessive leniency or excessive severity.

The fairness of punishment is one of the requirements of criminal legislation. The fairness of punishment is an expression of the humanism inherent in our society.

Only punishment that not only ensures the rehabilitation of the offender but also protects the rights and safety of all members of society, safeguarding them against criminal encroachments, can be considered fair. Every guilty person must be subjected only to the punishment that they deserve. The court must convincingly demonstrate to society the fairness of the punishment.

The principle of individualization of punishment consists in the court, on the basis of law and justice, selecting a specific measure of punishment corresponding 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 a guilty person, 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 and degree of public danger of a particular criminal offence is the exclusive prerogative of the legislator. The nature of the public danger of a criminal offence is determined by its classification into a particular category of gravity in accordance with Article 11 of the Criminal Code, while the degree of public danger of a criminal offence depends on the totality of all other circumstances, namely the circumstances under which the specific 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 size and nature of the damage caused to the object of the encroachment, as well as to other objects, the method of committing the criminal offence, the nature and degree of guilt, the motive, purpose, etc.

According to paragraph 6 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated 20 April 2018, “On the Judicial Judgment”, a conviction shall be rendered if the court has conclusively 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 the proceedings 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 deemed proven only where the court, guided by the presumption of innocence, has directly examined all the evidence, interpreted all irremovable doubts in favour of the defendant and, within the framework of due legal procedure, has provided answers to all the questions specified in Article 390 of the Criminal Procedure Code.

In accordance with subparagraph 9) of paragraph 3 of Article 77 of the Constitution of the Republic of Kazakhstan, no one may be convicted solely on the basis of their own confession. In this regard, courts should bear in mind that the defendant's admission of guilt may form the basis of a conviction only if their guilt is corroborated by the totality of other evidence collected in the case.

When assessing evidence, courts should also be guided by the provisions enshrined in subparagraph 9) of paragraph 3 of Article 77 of the Constitution and Articles 112 and 125 of the Criminal Procedure Code, and should bear in mind that evidence obtained in violation of the law has no legal force and therefore cannot form the basis of a conviction or be used to prove any circumstance specified in Article 113 of the Criminal Procedure Code.

In accordance with Article 331 of the Criminal Procedure Code, a judgment must be based exclusively on evidence examined directly during the main court hearing. The court may not refer in its judgment, in support of its conclusions, to evidence that was not examined during the court hearing with the participation of the parties.

Having resolved the issues concerning the legal classification of the defendant's actions, the court is obliged, in compliance with the rules specified in Articles 52–64 and Articles 81, 82 and 83 of the Criminal Code, to substantiate its conclusion regarding the punishment of the guilty person.

In accordance with part 2 of the Article under commentary, a person who has committed a criminal offence shall 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 provided for the commission of a criminal offence shall be imposed only if a less severe type of punishment cannot ensure the achievement of the objectives of punishment. A more severe punishment than that provided for the act committed by the relevant Articles of the Special Part of the Criminal Code may be imposed in cases of cumulative criminal offences or cumulative sentences in accordance with Articles 58 and 60 of the Criminal Code. The grounds for imposing a less severe punishment than that provided for the act committed by the relevant Articles of the Special Part of the Criminal Code are determined by Article 55 of the Criminal Code.

Paragraph 1 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan “On Certain Issues of Sentencing” states: “Proceeding from the provisions of the Constitution of the Republic of Kazakhstan concerning the equality of all before the law and the court, and taking into account that no one may be found guilty of committing a criminal offence and subjected to criminal punishment otherwise than on the basis of a court judgment that has entered into legal force, the attention of the courts is drawn to the fact that every criminal case, regardless of the nature and gravity of the criminal offence committed and the official or public position of the person concerned, must be resolved in strict accordance with the law. When imposing criminal punishment, courts must strictly comply with the general rules of sentencing specified in Article 52 of the Criminal Code of the Republic of Kazakhstan and also take into account the category of the criminal offence, the existence and type of recidivism, the stage of commission of the criminal offence, the degree of the defendant's participation in the commission of the criminal offence, the significance of their actions in achieving the objective 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 cumulative set of criminal offences, the existence of circumstances mitigating and aggravating liability and punishment, and the grounds for imposing a more lenient punishment than that provided for the criminal offence in question”.

Unfair punishment resulting from excessive severity or leniency does not contribute to achieving the objectives of punishment. Paragraph 2) of the above-mentioned Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan draws the attention of courts to the need for “...mandatory consideration and application of the severe measures of punishment provided for by law in respect of persons found guilty of committing criminal offences as part of criminal groups, corruption, terrorist and extremist crimes, as well as crimes against the sexual integrity of minors, and persons with previous convictions who are unwilling to embark on the path of rehabilitation”.

If the criminal law under which a person is found guilty provides for more lenient types of punishment alongside deprivation of liberty, the court is obliged, when rendering its judgment, to consider the possibility of imposing a punishment not involving deprivation of liberty. Where another less severe punishment is available, the imposition of deprivation of liberty specifically must be substantiated in the judgment.

The law obliges the court, when imposing punishment, to foresee the impact of the punishment on the rehabilitation of the convicted person, the achievement of which is one of the principal objectives of punishment, to choose, wherever possible, the least severe type of punishment and to determine its amount taking into account all the circumstances.

Furthermore, guided by the principle of humanity, the court must take into account the possible impact of the punishment imposed on the guilty person on the living conditions of their family and of persons dependent on them. However, these circumstances must not be given overriding significance, since excessively mitigating the punishment of a person who has committed a serious or especially serious crime would be inhumane both towards the victim and towards society as a whole. The unjustified imposition of a less severe punishment from among those provided for by an alternative sanction may lead (and sometimes does lead) to convicted persons committing new criminal offences, thereby failing to achieve the fundamental objective of punishment — the prevention of criminal offences.

It may be said that an excessively lenient punishment can create, both in the offender and among the population, an impression of the weakness of the authorities and the impunity of criminal offences, whereas an excessively severe punishment may lead to the opposite result: justified resentment on the part of the convicted person and a social perception of punishment as an act of reprisal. Unfair punishment entails other negative consequences as well. Punishment must be perceived, first and foremost by the convicted person and subsequently by other individuals, as a lawful consequence of the criminal offence committed.

When determining the degree of public danger of the criminal offence committed, courts should take into account its gravity as provided for in Article 11 of the Criminal Code and the totality of the circumstances under which it was committed (the method of commission, form of guilt, motives and purposes, stage of completion of the act, degree of public danger of the consequences that occurred, etc.).

Part 3 of Article 52 of the Criminal Code also specifically emphasizes the need for the court to take into account the personality of the offender when determining fair punishment. In particular, it states: “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 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 study of an individual's personality during the consideration of a case plays a special role in sentencing. Since the objectives of punishment, in addition to restoring social justice, include the rehabilitation of the convicted person and the prevention of new criminal offences, the court must carefully examine both the biological and social characteristics of the individual. In certain cases, the type and amount of punishment are influenced by the offender's sex, age and state of health. The purpose and motive of the criminal acts, as well as information characterizing the offender, are of great importance.

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 criminal law theory, social characteristics are understood as the system of life values of a particular individual and the type and degree of distortion of their individual consciousness. Psychobiological characteristics include a 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.

Paragraph 3 of the above-mentioned Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan states: “Courts must comprehensively, fully and objectively examine information concerning the defendant's personality, bearing in mind its substantial influence on determining the type and amount of punishment. In particular, it is necessary to establish the defendant's state of health, capacity to work, attitude towards work and education, information concerning previous convictions and family circumstances. In accordance with part three of Article 52 of the Criminal Code, courts must take into account, when imposing punishment, the impact of the punishment imposed on the living conditions of the defendant's family and persons dependent on them”.

Furthermore, paragraph 5 of the above-mentioned Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan draws the attention of courts to the need to indicate in the judgment, in respect of each defendant, the circumstances mitigating and aggravating their liability and punishment.

When imposing a particular type of punishment, the court must forecast its impact on the convicted person and determine whether the selected type and amount 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 or persons dependent on them.

Consistent and strict implementation of the principle of individualization of punishment can be achieved if, in each particular case, the totality of all the circumstances of the case, the nature and degree of gravity of the criminal offence, and the qualities characterizing the personality of the person who committed the criminal offence are taken into account. In addition, the court is obliged, when imposing punishment, to take into account the circumstances present in the case that mitigate or aggravate liability and punishment (Articles 53 and 54 of the Criminal Code).

When imposing punishment on a minor, in addition to the circumstances under consideration, the court takes into account the conditions of the minor's life and upbringing, their level of mental development, other personality characteristics, as well as the influence of older persons on them (Article 82 of the Criminal Code). This legislative approach is entirely justified, since the above-mentioned circumstances, which play a significant role in shaping the personality of a minor offender, must influence the punishment imposed on them.

The punishment imposed on the guilty person must help deter them from committing a new criminal offence and facilitate their return to socially useful activities.

Commentary of 2021 on the Criminal Code of the Republic of Kazakhstan 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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