Commentary on Article 58. Imposition of Punishment for Multiple Criminal Offenses under the Criminal Code of the Republic of Kazakhstan

1. In the event of multiple criminal offenses, the court, having imposed the principal and additional punishment separately for each offense, shall determine the final punishment by absorbing the less severe punishment into the more severe punishment or by fully or partially adding the punishments imposed.

2. If the aggregate of criminal offenses consists exclusively of criminal misdemeanors, the final punishment shall be imposed either by absorbing the less severe punishment into the more severe punishment or by partially or fully adding the punishments. In this case, the final amount of a fine may not exceed four hundred monthly calculation indices, and the final term of community service or arrest may not exceed four hundred hours or fifty days, respectively.

If the aggregate of criminal offenses consists exclusively of criminal misdemeanors, minor offenses, and medium-gravity offenses, the final punishment shall be imposed by absorbing the less severe punishment into the more severe punishment.

3. If the aggregate of criminal offenses includes a serious or especially serious crime, the final punishment shall be imposed by absorbing the less severe punishment into the more severe punishment or by partially or fully adding the punishments. In this case, the final term of imprisonment may not exceed twenty years.

4. If the aggregate of criminal offenses includes at least one especially serious crime for which this Code provides for imprisonment for a term of up to twenty years, the final punishment shall be imposed by partially or fully adding the punishments. In this case, the final term of imprisonment may not exceed twenty-five years.

If the aggregate of criminal offenses includes at least one especially serious crime for which this Code provides for imprisonment for a term of up to twenty years, as well as a criminal misdemeanor for which a fine has been imposed, the final punishment shall be imposed by absorbing the less severe punishment into the more severe punishment.

If life imprisonment or the death penalty is imposed for a crime included in the aggregate, the final punishment shall be imposed in the form of life imprisonment or, respectively, the death penalty.

5. Additional punishments imposed for the offenses constituting the aggregate may be added to the principal punishment imposed for the aggregate of criminal offenses. In the event of partial or full addition, the final additional punishment may not exceed the maximum term or amount established for that type of punishment by the General Part of this Code.

6. The rules of this Article shall apply when, after a court has delivered a judgment in a case, it is established that the convicted person is also guilty of another criminal offense committed by that person before the judgment in the first case was delivered. In this case, the punishment served under the first court judgment shall be credited toward the final term of punishment.

In accordance with Part 1 of Article 13 of the Criminal Code, an aggregate of criminal offenses is defined as the commission of two or more acts provided for by different articles or different parts of an article of the Criminal Code of the Republic of Kazakhstan, none of which the person has been convicted of or released from criminal liability for on the grounds established by law.

Where there is an aggregate of criminal offenses, a person shall incur criminal liability for each act committed under the relevant article or part of an article of the Criminal Code of the Republic of Kazakhstan, provided that the elements of those acts are not covered by the provision of a single article or part of an article of the Criminal Code providing for a more severe punishment.

Thus, an aggregate consists of two or more criminal offenses, and the issue of punishment must be resolved in respect of each of them. Therefore, for example, criminal offenses in respect of which the issue of release from criminal liability on one or another ground has already been resolved at the time the case is considered (Articles 65, 66, 67, 68, 70, and 71 of the Criminal Code) cannot form part of an aggregate of criminal offenses.

Two or more crimes do not constitute an aggregate of crimes where their commission is provided for in the articles of the Special Part of the Criminal Code as a circumstance entailing a more severe punishment. In other words, there is no aggregate of crimes in cases where, pursuant to the statutory competition of criminal elements, two independent elements are combined into a single complex crime. For example, kidnapping (Article 125 of the Criminal Code) and causing death by negligence (Article 104 of the Criminal Code) may constitute a single crime — kidnapping resulting in the death of the victim through negligence (subparagraph 3) of paragraph 3 of Part 3 of Article 125 of the Criminal Code). An aggregate of crimes is also absent where an act provided for by one article of the Special Part of the Criminal Code is characterized by various qualifying elements provided for in different parts of that article. Therefore, for example, robbery committed by a group of persons by prior conspiracy on an especially large scale shall be classified not as an aggregate of crimes, but as a single crime provided for in subparagraph 2) of Part 4 of Article 192 of the Criminal Code. However, such an act may also constitute an aggregate of crimes if it is not united by a single intent, is committed at different times, and so forth. Accordingly, robbery committed by a group of persons by prior conspiracy, followed by the commission of another robbery by a group of persons by prior conspiracy and on an especially large scale, constitutes an aggregate of crimes.

If two acts may constitute a single criminal offense, then one act (omission) may also constitute an aggregate of criminal offenses if it contains the elements of crimes provided for by two or more articles of the Criminal Code. Thus, murder committed by blowing up a motor vehicle constitutes an aggregate of crimes provided for by Articles 99 and 202 of the Criminal Code. Such a resolution of the issue follows from the content of Part 2 of Article 13 of the Criminal Code, which states that an aggregate of criminal offenses also includes a single act (omission) containing the elements of criminal offenses provided for by two or more articles of the Criminal Code. In such an aggregate, a person shall incur criminal liability for each act committed under the relevant articles of the Criminal Code, provided that the elements of one act are not covered by the provision of the article of the Criminal Code providing for a more severe punishment for another act.

Thus, it may be concluded that an aggregate of criminal offenses consists of several criminal offenses, each of which requires a judicial decision. The procedure and rules for adopting such a decision are regulated by the provisions of Article 58 of the Criminal Code.

If a person is found guilty of committing two or more criminal offenses provided for by different articles or different parts of one article of the Criminal Code, none of which the person has been convicted of, the court, having imposed the principal punishment and, where necessary, additional punishment separately for each criminal offense, shall determine the final punishment for the aggregate of criminal offenses by absorbing the less severe punishment into the more severe punishment or by fully or partially adding the punishments imposed (Part 1 of Article 58 of the Criminal Code). Thus, the process of imposing punishment for an aggregate of criminal offenses has its own specific features and involves two stages:

- imposing punishment separately for each of the criminal offenses included in the aggregate;

- imposing the final punishment for the aggregate of criminal offenses.

The specified procedure for imposing punishment makes it possible, where grounds exist, to mitigate the punishment imposed for an individual criminal offense or even to exclude it from the judgment when the judgment is reviewed by the cassation court. This is also important when an amnesty or pardon is granted in respect of an individual crime. Furthermore, the law associates a number of legal consequences with the imposition of punishment for an individual criminal offense, such as establishing the existence of recidivism (Article 14 of the Criminal Code), determining the type of penal enforcement system institution when imprisonment is imposed (Article 46 of the Criminal Code), and so forth.

The final punishment for an aggregate of criminal offenses is determined on the basis of the principle of absorbing the less severe punishment into the more severe punishment, as well as by fully or partially adding the punishments imposed for each criminal offense.

If the aggregate of criminal offenses consists exclusively of criminal misdemeanors, the final punishment may be imposed both by absorbing the less severe punishment into the more severe punishment and by partially or fully adding the punishments. This provision also establishes the maximum amounts and terms of such punishments as fines, community service, and arrest, which may be imposed for an aggregate of criminal misdemeanors when the rules on partial or full addition of punishments are applied.

In this case, the final amount of a fine may not exceed four hundred monthly calculation indices, and the final term of community service or arrest may not exceed four hundred hours or fifty days, respectively.

These rules do not apply where the aggregate of criminal offenses includes criminal misdemeanors, minor offenses, and medium-gravity offenses. In such an aggregate, the final punishment shall be imposed exclusively by absorbing the less severe punishment into the more severe punishment (Part 2 of Article 58 of the Criminal Code). For example, a person is found guilty of extortion under Part 1 of Article 194 of the Criminal Code, as well as violation of the rules for conducting transactions with securities under Part 1 of Article 228 of the Criminal Code. The court imposes a punishment of restriction of liberty for a term of four years under Part 1 of Article 194 of the Criminal Code and arrest for a term of fifty days under Part 1 of Article 228 of the Criminal Code. The final punishment for the aggregate of criminal offenses must be imposed by absorbing the less severe punishment of arrest into the more severe punishment of restriction of liberty for a term of four years.

"When applying the principle of absorbing one less severe punishment into another, more severe punishment," states paragraph 14 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan "On Certain Issues of Imposing Criminal Punishment," "courts should bear in mind that the degree of severity of punishments is determined in the order in which they are listed in Article 40 of the Criminal Code."

If the aggregate of criminal offenses includes a serious or especially serious crime, the final punishment shall be imposed by absorbing the less severe punishment into the more severe punishment or by partially or fully adding the punishments. In this case, the final term of imprisonment may not exceed twenty years (Part 3 of Article 58 of the Criminal Code).

When applying the principle of absorption, the court takes into account not the sanctions of the articles of the Special Part of the Criminal Code under which the offender's acts have been classified, but the specific punishments imposed within the limits of those sanctions for each of the crimes committed. The less severe punishment is absorbed by the more severe punishment. Thus, if the court imposes on a person imprisonment for a term of three years under Part 1 of Article 191 of the Criminal Code and restriction of liberty for a term of five years under Part 1 of Article 249 of the Criminal Code, the more severe punishment of imprisonment for three years absorbs the less severe punishment of restriction of liberty for five years, and the final punishment for the aggregate shall be determined as imprisonment for a term of three years. "When applying the principle of absorbing one less severe punishment into another, more severe punishment," states paragraph 14 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan "On Certain Issues of Imposing Criminal Punishment," "courts should bear in mind that the degree of severity of punishments is determined in the order in which they are listed in Article 40 of the Criminal Code."

A different procedure is established if the aggregate of criminal offenses includes at least one especially serious crime for which the Criminal Code provides for imprisonment for a term of up to twenty years. In this case, the final punishment shall be imposed by partially or fully adding the punishments, and the final term of imprisonment may not exceed twenty-five years (Part 4 of Article 58 of the Criminal Code).

The difference between Part 4 and Part 3 of Article 58 of the Criminal Code is as follows. First, under Part 3 of Article 58 of the Criminal Code, the aggregate of criminal offenses includes a serious or especially serious crime. No specific anticipated term of imprisonment is indicated in this provision, whereas Part 4 of Article 58 of the Criminal Code expressly states that the aggregate of criminal offenses includes at least one especially serious crime for which the Criminal Code provides for imprisonment for a term of up to twenty years. Consequently, in relation to Part 3 of Article 58 of the Criminal Code, the term of imprisonment for an especially serious crime included in the aggregate of criminal offenses must be less than twenty years. Second, the difference lies in the principles used to determine the final punishment in the form of imprisonment. Under Part 3 of Article 58 of the Criminal Code, the final punishment is imposed by absorbing the less severe punishment into the more severe punishment or by partially or fully adding the punishments. In this case, the final term of imprisonment may not exceed twenty years. Unlike Part 3, Part 4 of Article 58 of the Criminal Code provides that the final punishment is determined by applying the principle of partial or full addition of punishments; that is, the principle of absorbing the less severe punishment into the more severe punishment, as provided for in Part 3 of Article 58 of the Criminal Code, is not applied. In this case, the final punishment may not exceed twenty-five years (whereas under Part 3 of Article 58 of the Criminal Code, as noted above, it may not exceed twenty years).

The legislator provides for a different rule where the aggregate includes at least one especially serious crime for which the Criminal Code of the Republic of Kazakhstan provides for imprisonment for a term of up to twenty years, as well as a criminal misdemeanor for which a fine is imposed. In such an aggregate, the final punishment shall be imposed by absorbing the less severe punishment into the more severe punishment.

If life imprisonment or the death penalty is imposed for a crime included in the aggregate, the final punishment shall be imposed in the form of life imprisonment or, respectively, the death penalty.

The addition of punishments imposed for individual criminal offenses may be full or partial, but in any event, the final punishment resulting from addition must be more severe than any of the punishments imposed for an individual criminal offense. In the case of full addition, the final punishment for the aggregate is equal to the sum of the punishments being added. In the case of partial addition, part of the punishment imposed for another criminal offense is added to the most severe punishment. For example, where the court imposes imprisonment for a term of six years under Part 2 of Article 132 of the Criminal Code and imprisonment for a term of two years under Part 1 of Article 293 of the Criminal Code, the final punishment may be imposed as imprisonment for a term exceeding six years but remaining within the limit of eight years.

The final term resulting from the addition of punishments is restricted by certain limits established by law (Articles 41–46, 50, and 51 of the Criminal Code). In this case, the final punishment resulting from addition may not exceed the maximum term or amount provided for the relevant type of punishment. For example, the maximum term of restriction of liberty when such punishments are added may not exceed seven years; community service for criminal misdemeanors may not exceed 200 hours, and for minor and medium-gravity crimes, 1,200 hours.

Where the final punishment for an aggregate of criminal offenses is not related to imprisonment, it may not exceed the maximum term or amount provided for the relevant type of punishment by the General Part of the Criminal Code. For example, fines for criminal misdemeanors are added within the range of twenty to two hundred monthly calculation indices, and for crimes, within the range of two hundred to ten thousand monthly calculation indices or in a multiple amount; correctional labor for criminal misdemeanors is imposed within the range of twenty to two hundred monthly calculation indices, and for crimes, within the range of two hundred to ten thousand monthly calculation indices; community service for criminal misdemeanors is imposed within the range of twenty to two hundred hours, and for minor and medium-gravity crimes, within the range of two hundred to one thousand two hundred hours; restriction of liberty is imposed for a term of six months to seven years; deprivation of the right to hold certain positions or engage in certain activities is imposed for a term of one to ten years; expulsion of a foreigner or stateless person from the Republic of Kazakhstan is imposed for a term of up to five years; and arrest is imposed for a term of ten to fifteen days.

When punishments in the form of imprisonment are added, the final punishment may be imposed within the limit of twenty years. If the aggregate of crimes includes at least one especially serious crime providing for imprisonment for a term of up to twenty years, the final punishment shall be imposed by partially or fully adding the punishments. In this case, the final term of imprisonment may not exceed twenty-five years.

Paragraph 14 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan "On Certain Issues of Imposing Criminal Punishment" states: "When imposing punishment for an aggregate of criminal offenses, courts must take into account that the principles provided for by law, namely, absorbing the less severe punishment into the more severe punishment or fully or partially adding punishments, must be substantiated in the judgment.

...When punishments of the same type are imposed for each criminal offense included in the aggregate, the most severe among them shall be considered the punishment whose term or amount is greater. If punishments of the same type and amount are imposed for the criminal offenses included in the aggregate, determining the final punishment by absorbing one punishment into another is permissible only in cases where they have been imposed at the maximum limits of the sanctions of the relevant articles of criminal law.

In the case of an aggregate of criminal offenses, principal and additional punishments must be imposed separately for each criminal offense. The same procedure must be followed when imposing additional punishment in accordance with Part 3 of Article 50 of the Criminal Code, after which the final punishment shall be imposed in accordance with Article 58 of the Criminal Code. In the case of full addition, the terms and amounts of punishments are summed in accordance with the requirements of Article 61 of the Criminal Code. In the case of partial addition, part of the less severe punishment is added to the more severe punishment. The terms and amounts of the combined punishment may not exceed the limits established by Article 58 of the Criminal Code. If different types of additional punishment are imposed for the criminal offenses constituting the aggregate, they must be specified in the judgment, with the corresponding amounts and terms indicated, when the final punishment is imposed.

When deciding whether to apply the principle of addition or absorption of punishments, courts, in selecting one of these principles, must take into account in each specific case the nature, degree of public danger, and circumstances of the criminal offenses committed, information about the identity of the offender, and other facts affecting the imposition of punishment."

Additional punishments imposed for the criminal offenses constituting the aggregate may be added to the principal punishment imposed for the aggregate of criminal offenses. In the case of partial or full addition, the final additional punishment may not exceed the maximum term or amount established for the relevant type of punishment by the General Part of the Criminal Code (Part 5 of Article 58 of the Criminal Code).

In judicial practice, there are cases where, after a judgment has been delivered, it becomes apparent that the offender committed another criminal offense before that judgment was delivered, for which the offender is subsequently convicted. In such a case, punishment under the two judgments is imposed not according to the rules of Article 60 of the Criminal Code, "Imposition of Punishment for an Aggregate of Sentences," but according to the rules of the Article under consideration, namely, Article 58 of the Criminal Code. In this case, the punishment served under the first judgment is credited toward the final term of punishment. Thus, Part 6 of Article 58 of the Criminal Code provides that punishment shall be imposed in accordance with the rules of this Article if, after a court has delivered a judgment in a case, it is established that the convicted person is also guilty of another criminal offense committed before the judgment in the first case was delivered. In this case, the punishment served under the first court judgment is credited toward the final term of punishment.

Paragraph 15 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan "On Certain Issues of Imposing Criminal Punishment" provides the following clarification: "Courts should take into account that, when imposing punishment for an aggregate of criminal offenses on the basis of Part 6 of Article 58 of the Criminal Code, the final punishment for the aggregate of criminal offenses may not be less than the punishment imposed under the first judgment, since in such cases, when applying absorption or addition of punishments, the entire punishment imposed under the first judgment, rather than its unserved portion, must be taken as the starting point.

If, after a judgment has been delivered, it is established that the convicted person is guilty of committing other criminal offenses, some of which were committed before the first judgment was delivered and others after it, the punishment under the second judgment shall be determined by applying both Article 58 and Article 60 of the Criminal Code: first, the punishment for the aggregate of crimes committed before the first judgment was delivered shall be determined; then the rules of Part 6 of Article 58 of the Criminal Code shall be applied; thereafter, the punishment for the aggregate of crimes committed after the first judgment was delivered shall be determined, and the final punishment shall be determined for the aggregate of sentences."

When determining the number of previous convictions, courts should bear in mind that convictions for crimes committed before the judgment in the first case was delivered, where the final punishment is determined for the aggregate of crimes on the basis of Part 6 of Article 58 of the Criminal Code, are counted as one conviction.

If a person commits a new criminal offense after a judgment has been delivered but before it has entered into legal force, the court shall impose punishment for the aggregate of criminal offenses in accordance with the rules of Part 6 of Article 58 of the Criminal Code.

A person released from punishment by a court judgment (ruling), irrespective of the period spent in custody in connection with the imposition of detention as a preventive measure, shall, in accordance with Part 2 of Article 79 of the Criminal Code, be considered to have no criminal record from the moment the judicial act on the basis of which the person was released from punishment enters into legal force.

Persons released from serving a sentence in accordance with Article 77 of the Criminal Code due to the expiration of the limitation period for an обвинительный judgment; persons sentenced conditionally (Article 63 of the Criminal Code) after the expiration of the probationary control period; persons sentenced with a deferment of execution of the judgment (Article 74 of the Criminal Code) after the expiration of the deferment period, provided that the person was released from serving the sentence; or persons released from punishment due to a concurrence of grave circumstances (Part 1 of Article 76 of the Criminal Code) shall not be considered previously convicted to imprisonment.

Persons whose punishment imposed by a court judgment (correctional labor, restriction of liberty, etc.) was replaced by imprisonment on the grounds provided for in Part 3 of Article 42 and Part 2 of Article 45 of the Criminal Code shall not be regarded as persons previously sentenced to imprisonment.

When a person is convicted of a criminal offense committed before the previous judgment was delivered, the entire punishment served under the previous judgment shall be credited. The term of serving the punishment imposed on the basis of Part 6 of Article 58 and Article 60 of the Criminal Code shall be calculated from the date of delivery of the last judgment, with the time spent in custody before trial in the latest case as a preventive measure or as a result of detention being credited.

Where restriction of liberty is imposed for an uncompleted crime and is replaced by imprisonment in the event of malicious evasion from serving the punishment, the term and amount of such punishment may not exceed the limits established by Article 56 of the Criminal Code.

The rules for imposing punishment for an aggregate of criminal offenses established in the Article under consideration also apply to minors. The difference is that deprivation of the right to engage in certain activities, when added, is imposed on minors for an aggregate of criminal offenses for a term of up to two years; a fine may be imposed only if the convicted minor has independent earnings or property subject to enforcement, and may not exceed one hundred monthly calculation indices; correctional labor is imposed on minors who have independent earnings or other permanent income and may not exceed one hundred monthly calculation indices; community service may not exceed seventy-five hours; restriction of liberty may not exceed two years, and in the event that the unserved part of a sentence of imprisonment is replaced by restriction of liberty, it may be imposed for the entire remaining term of the sentence; imprisonment may not exceed ten years, and for aggravated murder or an act of terrorism, or for an aggregate of criminal offenses that includes aggravated murder or an act of terrorism, may not exceed twelve years.

If the court of first instance applied the principle of partial addition of punishments imposed for each crime when imposing punishment for an aggregate of crimes, courts considering appeals and petitions and protests against judgments and rulings are not entitled to apply the principle of full addition of punishments, even in cases where those courts mitigate the punishment for one or more crimes included in the aggregate.

When an act is reclassified from one article to several articles of criminal law providing for liability for a less serious crime, provided that this does not worsen the position of the convicted person and does not violate the person's right to defense, courts considering appeals and petitions and protests against judgments and rulings shall apply the rules of Article 58 of the Criminal Code when deciding the issue of punishment. In this case, the final punishment may not be more severe than the punishment imposed by the judgment.

Where a person has committed two or more crimes constituting repeated criminality, but the court of first instance has erroneously classified them under two or more articles (parts of an article), having correctly assessed the act under one article while erroneously classifying certain acts under an article providing for liability for a more serious crime, the court considering appeals and petitions and protests against judgments and rulings, when reclassifying the relevant criminal acts under the article concerning a less serious crime, is entitled to impose a more severe punishment within the limits of its sanction than the punishment imposed by the court of first instance under that article, provided, however, that the final amount of punishment imposed by the judgment is not exceeded.

Courts considering appeals and petitions and protests against judgments and rulings are not entitled to impose an additional punishment if it was not imposed by the judgment, even where the crime is reclassified under an article of the law providing for its mandatory application. If, when imposing an additional punishment in the form of deprivation of the right to hold certain positions or engage in certain activities, the positions or types of activities are not specified or are specified inaccurately in the judgment, a higher court is entitled to cancel this additional punishment or make the appropriate clarifications in the judgment, provided that this does not worsen the position of the convicted person.

When a case is reconsidered after a judgment has been set aside, the court may not impose an additional punishment under the same article concerning the criminal offense if such punishment was not imposed in the original judgment, except in cases where the judgment was set aside due to the leniency of the punishment or the need to apply the law on a more serious criminal offense.

**Commentary of 2021 on 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, and Honored Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.

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