Commentary on Article 56. Imposition of Punishment for an Inchoate Crime of the Criminal Code of the Republic of Kazakhstan
1. When imposing punishment for an inchoate crime, the circumstances by virtue of which the crime was not brought to completion shall be taken into account.
2. The term or amount of punishment for preparation for a crime may not exceed one-half of the maximum term or amount of the principal type of punishment provided for an accomplished crime under the relevant article of the Special Part of this Code.
3. The term or amount of punishment for an attempt to commit a crime may not exceed three-quarters of the maximum term or amount of the principal type of punishment provided for an accomplished crime under the relevant article of the Special Part of this Code.
4. The death penalty and life imprisonment shall not be imposed for preparation for a crime or an attempt to commit a crime.
In addition to the general principles governing the imposition of punishment, the court is subject to the specific rules established in Article 56 of the Criminal Code. An inchoate crime is less dangerous than a completed crime. Taking this into account, the legislator adopts a differentiated approach to imposing punishment for an inchoate crime, distinguishing between the preparation stage and the attempt stage, and introduces formalised limits for imposing punishment for these stages.
First of all, pursuant to Part 1 of Article 56 of the Criminal Code, when imposing punishment for an inchoate crime, the circumstances by virtue of which the crime was not brought to completion shall be taken into account. Such circumstances may vary considerably: lack of experience, an error in calculation, compassion for the victim, or a mistake concerning the object, subject matter or means of the crime.
Preparation for a crime is considered a less dangerous act. Therefore, the law provides for a more lenient punishment compared with the punishment for an attempt and for a completed crime. The term or amount of punishment for preparation for a crime may not exceed one-half of the maximum term or amount of the principal type of punishment provided for a completed crime under the relevant article of the Criminal Code (Part 2 of Article 56 of the Criminal Code). This means that if a person is sentenced for preparation for a crime provided for in Part 1 of Article 127 of the Criminal Code, the maximum severe punishment that may be imposed is imprisonment for a term of one year and six months, whereas if a person is convicted of preparation for a crime provided for in Part 2 of Article 127 of the Criminal Code, the maximum term of imprisonment shall be three years and six months.
An attempt to commit a crime is a more dangerous form of an inchoate crime than preparation, but less dangerous than a completed crime. Therefore, the term and amount of punishment for an attempt are established at a level somewhat higher than that for preparation, but lower than that for a completed crime. Thus, pursuant to Part 3 of Article 56 of the Criminal Code, the term or amount of punishment for an attempt to commit a crime may not exceed three-quarters of the maximum term or amount of the principal type of punishment provided for a completed crime under the relevant article of the Special Part of the Criminal Code.
With regard to the examples considered above, this means that, in the event of an attempt to commit the above-mentioned types of crimes, the maximum severe punishment may not exceed, respectively, two years and three months and five years and three months of imprisonment.
At the same time, unlike preparation for a crime (for which criminal liability arises only in cases of preparation for a grave or especially grave crime, as well as preparation for a terrorist crime — Part 2 of Article 24 of the Criminal Code), criminal liability for an attempt arises in cases of an attempt to commit a medium-gravity, grave or especially grave crime, as well as an attempt to commit a terrorist crime (Part 4 of Article 24 of the Criminal Code).
In any event, criminal liability for an inchoate crime arises if the crime was not brought to completion due to circumstances beyond the person's control. This means that the criminal intent was not realised contrary to the offender's will. For example, at the preparation stage, the offender's plan was uncovered, as a result of which the person's actions were prevented by law enforcement authorities. The incompleteness of an act in the case of an attempt to commit a crime may be manifested, for example, in a thief's unsuccessful attempt to break open the door of an apartment from which the thief intended to steal certain items. If, however, a person voluntarily abandons further preparation for a crime or ceases the acts (omissions) directly aimed at committing the crime, this must be regarded as voluntary abandonment of a criminal offence, which entails the termination of criminal prosecution (Article 26 of the Criminal Code).
When imposing punishment for an inchoate crime, where the grounds provided for in Parts 2 and 3 of Article 55 of the Criminal Code are present, one-half, two-thirds and three-quarters of the maximum term and amount of the principal type of punishment shall be calculated on the basis of the limits established by Article 56 of the Criminal Code.
Where the rules on mandatory mitigation of punishment provided for in Articles 56 and 55 of the Criminal Code apply cumulatively, the statutory requirement for mandatory mitigation of punishment provided for in Article 56 of the Criminal Code shall be taken into account first. This Article stipulates that the term or amount of punishment for preparation for a crime may not exceed one-half, and for an attempt to commit a crime, three-quarters of the maximum term or amount of the principal type of punishment provided for the commission of a completed crime. Thereafter, the requirement provided for in Article 55 of the Criminal Code shall be taken into account, according to which punishment is imposed below the lower limit prescribed for the crime committed, or the court imposes a less severe type of punishment, or does not apply an additional type of punishment provided for as part of the conviction.
When a person has committed several inchoate crimes, punishment shall be imposed separately for each of them in accordance with Article 56 of the Criminal Code. In this case, the final punishment may not exceed by more than one-half the maximum term or amount of punishment that may be imposed under the above-mentioned rules for the most serious of the inchoate crimes committed.
It should be noted that the rules of Article 56 of the Criminal Code apply only to the principal types of punishment established by the relevant articles of the Criminal Code of the Republic of Kazakhstan. Their application to additional types of punishment is not provided for by law. This follows, first and foremost, from the meaning of the above-mentioned provision, according to which its application is linked to the term or amount of the principal type of punishment provided for a completed crime under an article of the Special Part of the Criminal Code.
If a minor is sentenced to imprisonment, taking into account the rules provided for in Parts 2 and 3 of Article 56 of the Criminal Code, one-half or three-quarters of the maximum term or amount of the principal type of punishment must be calculated, respectively, on the basis of ten or twelve years of imprisonment, which may be imposed on a minor for a completed criminal offence. Similar rules for calculating the terms of punishment for minors must also be taken into account when imposing punishment pursuant to the requirements of Parts 2 and 3 of Article 55 of the Criminal Code.
According to Part 4 of Article 56 of the Criminal Code, the imposition of the death penalty and life imprisonment for preparation for a crime and for an attempt to commit a crime is prohibited.
In the case of an inchoate crime, even where recidivism is present, the maximum amounts of punishment may not exceed the terms and amounts specified in Article 56 of the Criminal Code.
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 Worker of the Ministry of Internal Affairs of the Republic of Kazakhstan.
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