Commentary on Article 57. Sentencing for a Crime Committed with Complicity of the Criminal Code of the Republic of Kazakhstan
1. When imposing a sentence for a crime committed with complicity, the nature and degree of the person's actual participation in its commission, the significance of such participation in achieving the purpose of the crime, 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 criminal liability and punishment relating to the personality of one of the accomplices shall be taken into account when imposing a sentence only on that accomplice.
Part 1 of Article 57 of the Criminal Code of the Republic of Kazakhstan states that, when imposing a sentence for a crime committed with complicity, the following shall be taken into account:a) the nature and degree of the person's actual participation in the commission of the crime;b) the significance of such participation in achieving the purpose of the crime;c) the impact of participation in the crime on the nature and extent of the harm caused or that could have been caused.
Thus, the law requires an individualized approach to sentencing each participant in a group crime. In accordance with the law, the court is obliged to take into account the role of each accomplice in the commission of the crime, determine whether that person is the organizer or instigator of the crime or an aider and abettor, and assess the role of each accomplice. In addition, the court takes into account the degree of actual activity demonstrated by the person in committing the crime and their contribution to the execution and completion of that crime.
In accordance with paragraph 15 of the Resolution of the Plenum of the Supreme Court of the Republic of Kazakhstan dated April 30, 1999, "On Compliance by Courts with Legality in Imposing Criminal Punishment": "The commission of a crime by a group of persons or by a group of persons acting upon prior conspiracy entails a more severe punishment; therefore, courts should correctly determine the form of complicity and the accomplices to the crime."
Therefore, regardless of whether the punishment imposed on accomplices falls within the same or different limits of the sanction of an article of the Special Part of the Criminal Code of the Republic of Kazakhstan, it must, in any case, be based on an individualized approach to each of them, taking into account the fact that each accomplice performs a specific role in the commission of the crime. When imposing a sentence, the court must distinguish the degree and nature of the public danger of the acts committed by each of them, determine the significance of their actions in achieving the criminal objectives, as well as the impact of the actions of the particular accomplice on the nature and extent of the harm caused or that could have been caused. It follows from this that the participation of several persons in the commission of a single crime does not preclude the possibility of different legal classifications of the acts committed by each of them, as well as the imposition of entirely different punishments, both in terms of their severity and type.
Furthermore, pursuant to Part 2 of Article 57 of the Criminal Code of the Republic of Kazakhstan, when imposing a sentence, the court is obliged to take into account mitigating and aggravating circumstances only in relation to the accomplice to whom they directly pertain. For example, a person who has minor children dependent on them, is positively characterized at their place of residence, place of study or work, has sincerely repented, or has demonstrated particular cruelty in committing the crime or has previously been convicted repeatedly.
These circumstances indicate a greater or lesser degree of public danger posed by the individual's personality, but do not affect the level of public danger of the crime, including a crime committed jointly by several persons. These circumstances relating to the personality of an individual accomplice (both mitigating and aggravating) may not be disregarded by the court and must be taken into account when imposing a sentence only on that person, but not on the other accomplices.
In accordance with Parts 1 and 2 of Article 31 of the Criminal Code of the Republic of Kazakhstan, the classification of crimes and the imposition of punishment under an article (part of an article) of the Special Part of the Criminal Code that provides for the commission of a crime by a group of persons or by a group of persons acting upon prior conspiracy as an aggravating qualifying feature shall be possible only in cases where two or more persons jointly participated in the commission of the crime and are recognized as perpetrators in accordance with Part 2 of Article 28 of the Criminal Code.
The participation of an organizer, instigator and aider and abettor in a crime, where the crime (the execution of its objective elements) is committed by a single perpetrator, except in cases of crimes committed by an organized group or a criminal community, does not constitute grounds for classifying the act as a crime committed by a group of persons or for imposing punishment under an article (part of an article) of the Criminal Code that provides for the commission of a crime by a group of persons or by a group of persons acting upon prior conspiracy as a qualifying feature of the crime.
Thus, the imposition of punishment on persons who have committed a crime 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 crime; however, it must always be based on an individualized approach.
Commentary to the Criminal Code of the Republic of Kazakhstan dated 2007, by I. Sh. BORCHASHVILI, Honored Figure of Kazakhstan, Doctor of Law, Professor, Academician of the Kazakhstan National Academy of Natural Sciences.
Date of amendment to the act: 02.08.2007Date of adoption of the act: 02.08.2007Place of adoption: NONEAuthority that adopted the act: 180000000000Territorial scope of application: 100000000000Registration number of the regulatory legal act assigned by the law-making authority: 167Status of the act: newArea 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
