Commentary on Article 57. Imposition of Punishment for a Criminal Offense Committed with Complicity of the Criminal Code of the Republic of Kazakhstan
1. When imposing punishment for a criminal offense committed with complicity, the nature and degree of the person's actual participation in its commission, the significance of such participation for achieving the purpose of the criminal offense, and its impact on the nature and extent of the harm caused or that could have been caused shall be taken into account.
2. Circumstances mitigating or aggravating liability and punishment relating to the personality of one of the accomplices shall be taken into account when imposing punishment only with respect to that accomplice.
The imposition of punishment on persons who have committed a criminal offense with complicity is based on the principle of individualization of liability and makes it possible to impose either the same or different punishments on each of them for the same criminal offense; however, it must always be based on an individual approach.
The legislator's approach to resolving the issue of individualizing punishment for accomplices in a criminal offense is aimed at establishing not only the function (nature) of a person's role in joint criminal activity and the degree of their activity in performing that function, but also their actual contribution to the implementation of the accomplices' common criminal intent, the influence of each person's actions on the other participants and on the final criminal result. The legislator also provides the court with the opportunity to take into account the impact of a person's participation on the nature and extent of the harm caused or that could have been caused, which must be considered both when the criminal offense is committed and after its commission.
Part 1 of Article 57 of the Criminal Code specifies that, when imposing punishment for a criminal offense committed with complicity, the following shall be taken into account: 1) the nature and degree of the person's actual participation in the commission of the offense; 2) the significance of such participation for achieving the purpose of the crime; 3) the impact of participation in the criminal offense on the nature and extent of the harm caused or that could have been caused.
In theory and practice, the nature of a person's participation in a criminal offense is understood as the type (model) of criminal conduct characteristic of each of the recognized types of accomplices (perpetrator, instigator, organizer, and aider), that is, the specific function performed by these persons.
The degree of a person's participation in the commission of a criminal offense is understood as the measure of activity, the measure of intensity of the person's participation in performing the functional role assigned to them in the commission of the criminal offense. The degree is a quantitative characteristic of the person's activity in performing their function.
The very nature of participation in a criminal offense, as defined by law for each type of accomplice, also includes a different measure (degree) of such participation. Establishing the nature and degree of a person's actual participation in the commission of a crime influences the determination of the type and amount of punishment when it is imposed. In accordance with the law, the court is obliged to take into account the role of each accomplice in the commission of the criminal offense, determine whether that person is an organizer or instigator of the criminal offense, or an aider in the criminal offense, and assess the role of each accomplice. In addition, the court takes into account the degree of activity of the person's actual participation in the commission of the criminal offense and their contribution to the implementation and completion of that offense.
Paragraph 13 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan “On Certain Issues of Imposition of Criminal Punishment” states that the commission of a crime by a group of persons, a group of persons acting upon prior agreement, or a criminal group entails a more severe punishment; therefore, courts should correctly determine the type of complicity, the accomplices to the crime, and the role of each of them.
Paragraph 16 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan “On the Court Judgment” states: “... If a criminal offense has been committed by a group of persons, a group of persons acting upon prior agreement, or an organized group, the specific criminal acts committed by each of the defendants must be described”.
Paragraph 22 of the aforementioned Regulatory Resolution states the following: “Proceeding from the fact that judicial proceedings are conducted only in respect of the defendants, the court must not allow wording in the judgment that indicates the guilt of other persons who have not been brought to trial for committing a criminal offense.
If individual participants in a criminal offense have been released from criminal liability on grounds provided for by law, the court, in order to establish the degree of participation of the defendant in the criminal offense, qualify their actions, and determine other material circumstances of the case, may include in the judgment information about the participation of such persons in the commission of the criminal offense, with mandatory indication of the grounds for terminating the proceedings in respect of the case.
If the case against certain accused persons has been separated into separate proceedings, the judgment shall indicate that the criminal offense was committed by the defendant jointly with other persons, without mentioning their surnames”.
Determining the degree of participation constitutes a comprehensive assessment of the subject's activities from the perspective of establishing their actual role in the crime committed. The nature of participation, on the other hand, indicates the objective criterion that should be used when assigning a participant to one or another type of accomplice. In my opinion, it is not possible to speak of a clear and firm boundary between the nature and degree of participation, since the degree of participation in a crime is, to some extent, also determined by the nature of participation, because objectively, in the overwhelming majority of cases, the perpetrator represents the principal offender in comparison with the aider.
The nature and degree of influence in the commission of a crime, as established in the commented article, compete with such an aggravating circumstance as an especially active role in the commission of a criminal offense, provided for in subparagraph 4) of paragraph 1 of Article 54 of the Criminal Code. This circumstance may be taken into account only in cases where the crime has been committed with complicity. If, in the course of imposing punishment, the court establishes such a circumstance as an active role in the commission of a criminal offense, this competition must be resolved in favor of the special rule (Article 54 of the Criminal Code), while the more general rule in this respect (Article 57 of the Criminal Code) shall not be applied.
At the same time, it should be taken into account that the legislator recognizes as an aggravating circumstance under subparagraph 4) of paragraph 1 of Article 54 of the Criminal Code only an especially active role in the commission of a criminal offense, which may be expressed in the form of demonstrating criminal initiative, directing other accomplices, performing the most complex socially dangerous actions, and so forth.
Consequently, a “merely” active role in the commission of a crime (a high degree of criminal aggression, participation in the commission of individual episodes of the activities of a criminal group, etc.) should be taken into account when imposing punishment in accordance with Article 57 of the Criminal Code.
The significance of actual participation for achieving the purpose of a criminal offense is largely determined by the role played by the participant in the criminal offense. In all cases, the leaders of a criminal group should be given a more severe punishment than ordinary and secondary participants.
Accurately establishing the influence of a person's actual participation on the nature and extent of the harm caused or that could have been caused is of great importance for correctly determining the type and amount of punishment. Thus, a common result for all participants is an obligatory element of complicity; however, the significance of each of them in the final result differs. In addition, an individual's share in obtaining criminal proceeds may be a significant indicator when imposing punishment, determining the actual significance of each accomplice within a criminal group.
A legally significant circumstance for characterizing complicity is also the causal relationship between the actions of each accomplice and the common criminal result, which must be encompassed by the consciousness of each of them. The degree of specificity in understanding the causal relationship is generally different: the organizer understands each element of the causal relationship and foresees the specific result, whereas the aider perceives all of this only in general terms. In this case, it is not possible to speak of imposing the same punishment on both of them.
Furthermore, pursuant to Part 2 of Article 57 of the Criminal Code, when imposing punishment, the court is obliged to take into account mitigating and aggravating circumstances only with respect to the accomplice to whom they directly relate. For example, a person who has minor children dependent on them; is positively characterized at their place of residence, study, or work; has sincerely repented; displayed particular cruelty when committing the criminal offense; or has been convicted repeatedly in the past. These circumstances indicate a greater or lesser degree of social dangerousness of the individual's personality, but do not affect the level of social dangerousness of the criminal offense, including one committed jointly by several persons. Such circumstances relating to the personality of an individual accomplice (both mitigating and aggravating) must not be disregarded by the court and must be taken into account when imposing punishment only with respect to that person, and not with respect to the other accomplices.
Thus, the imposition of punishment on persons who have committed a criminal offense with complicity is based on the principle of individualization of liability and makes it possible to impose either the same or different punishments on each of them for the same criminal offense; however, it must always be based on an individual approach.
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 Worker of the Ministry of Internal Affairs of the Republic of Kazakhstan.
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