Commentary on Article 59. Imposition of Punishment in Cases of Recidivism and Dangerous Recidivism of Crimes under the Criminal Code of the Republic of Kazakhstan

When imposing punishment in cases of recidivism or dangerous recidivism of crimes, the number, nature and degree of public danger of previously committed crimes, the circumstances due to which the corrective impact of the previous punishment proved insufficient, as well as the nature and degree of public danger of newly committed crimes shall be taken into account.

In Article 14 of the Criminal Code, the legislator defines two types of recidivism of crimes: recidivism of crimes and dangerous recidivism of crimes.

For the fair imposition of punishment in cases of recidivism of crimes, the accurate determination of recidivism and dangerous recidivism of crimes in accordance with the law is of great importance.

According to Part 1 of Article 14 of the Criminal Code, recidivism of crimes is recognized as the commission by a person of a serious crime, provided that such person was previously sentenced to imprisonment for committing a serious crime.

Dangerous recidivism of crimes is recognized as the commission by a person of:

a serious crime, if that person was previously sentenced to imprisonment twice for committing serious crimes or was sentenced for an especially serious crime;

an especially serious crime, if that person was previously sentenced to imprisonment for committing a serious or especially serious crime (Part 2 of Article 14 of the Criminal Code).

Convictions for crimes committed by a person before reaching the age of eighteen, as well as convictions that have been expunged or removed in accordance with the procedure established by the Criminal Code of the Republic of Kazakhstan, shall not be taken into account when determining recidivism or dangerous recidivism of crimes (Part 3 of Article 14 of the Criminal Code).

Recidivism of crimes and dangerous recidivism of crimes entail the imposition of a more severe punishment on the grounds and within the limits provided for by the Criminal Code (Part 4 of Article 14 of the Criminal Code).

The Criminal Code of the Republic of Kazakhstan establishes that a person convicted of committing a crime shall be considered to have a criminal record from the date on which the conviction enters into legal force until the criminal record is expunged or removed. In accordance with the Criminal Code of the Republic of Kazakhstan, criminal records are taken into account when determining recidivism of crimes, dangerous recidivism of crimes, and when imposing punishment (Part 1 of Article 79 of the Criminal Code).

Thus, a criminal record represents a legal status of a person arising from the fact of conviction and the imposition of punishment upon that person by a court judgment for a crime committed, and entailing legal consequences established by criminal legislation when that person repeatedly commits crimes; an unexpunged or unremoved criminal record gives rise to special public-law relations between the person and the State, based on criminal-law regulation, which, when that person commits new crimes, serve as grounds for assessing the person's identity and the crimes committed by that person as possessing an increased degree of public danger and, consequently, presuppose the application of more severe measures of criminal liability.

Paragraph 2 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan “On Certain Issues of Imposing Criminal Punishment” states: “The courts shall be reminded of the necessity of mandatory consideration and application of the severe punishment measures provided for by law to persons found guilty of committing criminal offenses as part of criminal groups, corruption-related, terrorist, and extremist crimes, as well as crimes against the sexual inviolability of minors, and to previously convicted persons who are unwilling to embark on the path of rehabilitation.

When determining the degree of public danger of a committed criminal offense, the 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.).”

When determining recidivism or dangerous recidivism of a crime, a person previously sentenced to imprisonment shall be understood as a person who, in the past, was sentenced by a court judgment that entered into legal force to imprisonment for committing a serious or especially serious crime, where the punishment was to be served in institutions of the penal enforcement system, including cases in which the person did not actually serve that punishment (for example, evaded serving it or was released from serving the punishment on the grounds of Article 75 of the Criminal Code, “Release from Punishment Due to Illness”).

When recognizing recidivism, the person's previous unexpunged and unremoved criminal record for committing a serious or especially serious crime must also be taken into account where imprisonment was imposed conditionally (with the application of Article 63 of the Criminal Code) or with a deferral of execution of the judgment (Articles 74 and 76 of the Criminal Code), and that person committed a new crime during the period of probationary control or during the period of deferral of execution of the judgment, or where the conditional conviction or deferral of execution of the judgment was revoked and that person was sent to the relevant institution to serve the sentence of imprisonment imposed by the court judgment.

In cases of recidivism and dangerous recidivism, punishment shall be imposed taking into account the provisions of subparagraph 1) of Part 1 of Article 54 of the Criminal Code and Article 59 of the Criminal Code.

Article 59 of the Criminal Code contains a list of circumstances to be taken into account when imposing punishment in cases of recidivism of crimes: “the number, nature and degree of public danger of previously committed crimes; the circumstances due to which the corrective impact of the previous punishment proved insufficient, as well as the nature and degree of public danger of newly committed crimes.” These statutory requirements make it possible to individualize punishment, taking into account all the information concerning the crime committed and the identity of the offender. The presence of recidivism of crimes or dangerous recidivism of crimes in a person's actions indicates an increased degree of public danger of the offender's personality.

The Supreme Court of the Republic of Kazakhstan also draws attention to these issues. Thus, paragraph 24 of the Regulatory Resolution of 25 December 2007 “On the Application by Courts of Legislation on Recidivism of Crimes” states: “The existence of recidivism of crimes, in accordance with subparagraph 1) of Part 1 of Article 54 of the Criminal Code, shall be taken into account as a circumstance aggravating criminal liability and punishment. When imposing punishment in cases of recidivism of crimes or dangerous recidivism of crimes, in accordance with Article 59 of the Criminal Code, the number, nature and degree of public danger of previously committed criminal offenses, the circumstances due to which the corrective impact of the previous punishment proved insufficient, as well as the nature and degree of public danger of newly committed criminal offenses shall be taken into account.”

The number of previously committed crimes is a quantitative characteristic of the person's previous criminal activity, which presupposes determining how many times the person was previously convicted and how many crimes underlie those convictions, since the disposition of the Article under consideration refers to the number of previously committed crimes.

The nature of the public danger of a crime is determined by criminal law and depends on the elements of the offense established by the court. When taking into account the nature of the public danger of a crime, courts should bear in mind, first and foremost, the direction of the act towards social values protected by criminal law and the harm caused by it.

The degree of public danger of a crime is determined by the court depending on the specific circumstances of the act committed, in particular, the nature and extent of the consequences that occurred, the method of committing the crime, the role of the defendant in a crime committed with complicity, and the type of intent (direct or indirect). Circumstances mitigating or aggravating punishment (Articles 53 and 54 of the Criminal Code) that relate to the crime committed (for example, the commission of a criminal offense due to a combination of difficult personal, family or other circumstances, or out of compassion, or the particularly active role in committing a criminal offense) shall also be taken into account when determining the degree of public danger of the criminal offense.

Since the content of the first criterion for imposing punishment encompasses the gravity of previously committed crimes, it is necessary to establish which crimes the person was previously convicted of (under which Article the acts were classified), and what punishment was imposed (its type, term or amount).

Identifying the circumstances due to which the corrective impact of the previous punishment proved ineffective is important for predicting the convicted person's future behavior and determining whether the punishment selected is sufficient as a means of achieving its objectives, as provided for in Article 39 of the Criminal Code (restoration of social justice, rehabilitation of the convicted person, and prevention of new criminal offenses by both the convicted person and other persons). This means that information must be available concerning the type and duration of corrective and educational measures applied by the relevant punishment enforcement authority, the convicted person's response to those measures, and so forth.

According to paragraph 29 of the aforementioned Regulatory Resolution of the Supreme Court: “When considering cases involving recidivist crimes, it is necessary to establish the causes and conditions that contributed to the repeated commission of crimes by persons with unexpunged and unremoved criminal records, and to pay attention to shortcomings in the work of the authorities responsible for enforcing judgments and carrying out work aimed at the rehabilitation and re-education of convicted persons.” In particular, it should be established whether educational and preventive work was carried out with them during the period of serving their punishment and after their release from punishment, whether their behavior was monitored after their previous convictions, whether administrative supervision was imposed where necessary, whether they were provided with assistance in finding employment and arranging their living conditions, and other relevant matters. Where necessary, separate rulings should be issued in accordance with Part 4 of Article 53 of the Criminal Procedure Code.

Taking into account the nature and degree of public danger of newly committed crimes is necessary for determining punishment for the crimes committed and for comparing the nature of the newly committed act with that of the previously committed act: how much time elapsed between the person's release from punishment and the commission of the new crime, whether the previous and new acts were homogeneous or heterogeneous, and so forth.

“Courts, when considering criminal cases on appeal and cassation, as well as materials related to the execution of criminal punishment,” paragraph 28 of the aforementioned Regulatory Resolution of the Supreme Court states, “must pay attention to the legality of the judgment with regard to the recognition of recidivism of crimes and the determination of its type, to the correctness of imposing punishment in cases of recidivism of crimes, and take measures to eliminate judicial errors in a timely manner.

The adoption by the appellate court of the decision provided for in subparagraph 6) of Part 1 of Article 442 of the Criminal Procedure Code shall be permitted only in cases where the court of first instance, despite the existence of sufficient grounds in the case materials, failed to consider the issue of recognizing recidivism of crimes, or considered it but did not set out its decision in the operative part of the judgment, or made an incorrect decision, provided that the need to amend the judgment in this part is indicated in the prosecutor's petition or in the complaint of the prosecution.

If, during the pre-trial investigation of the case, the fact that the criminal offense was committed under the relevant form of recidivism was not indicated as an aggravating circumstance in the ruling on the classification of the suspect's act and in the indictment, or where this circumstance was indicated but was not confirmed by the relevant case materials and was not substantiated by the prosecution during the court hearing, complaints by the prosecution and petitions by the prosecutor to amend the judgment and recognize recidivism of crimes in the convicted person's actions shall not be granted when the case is considered on appeal.”

It is appropriate here to cite paragraph 15 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan “On the Court Judgment”: “Other information about the defendant's personality that is relevant to the case may include data taken into account when imposing punishment, determining the type of institution of the penal enforcement system, establishing the type of recidivism, and classifying the acts. In particular, this includes information about unexpunged and unremoved criminal records, the application of an amnesty act, the defendant's disability, and other information...”

In accordance with Part 6 of Article 63 of the Criminal Code, conditional conviction shall not be applied to persons in cases of recidivism of crimes or dangerous recidivism of crimes.

Recidivism of crimes and dangerous recidivism of crimes affect the regime for serving the sentence (see the commentary to Part 5 of Article 46 of the Criminal Code).

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 the Reform of the Law Enforcement System under the Security Council of the Republic of Kazakhstan, Honored Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.

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