Commentary on Article 60. Imposition of Punishment Based on the Aggregate of Sentences of the Criminal Code of the Republic of Kazakhstan
1. If a convicted person commits a new criminal offense after the pronouncement of a sentence but before fully serving the punishment, the court shall add, in whole or in part, the unserved portion of the punishment under the previous court sentence to the punishment imposed under the latest court sentence.
2. The final punishment based on the aggregate of sentences, if it is not associated with deprivation of liberty, may not exceed the maximum term or amount provided for this type of punishment by the General Part of this Code.
3. The final punishment based on the aggregate of sentences in the form of deprivation of liberty may not exceed twenty-five years. If the aggregate of sentences includes a sentence by which a person was found guilty of committing at least one especially grave crime for which this Code provides for punishment in the form of deprivation of liberty for a term of up to twenty years, the final punishment based on the aggregate of sentences in the form of deprivation of liberty may not exceed thirty years. 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.
4. The final punishment based on the aggregate of sentences must be greater than both the punishment imposed for the newly committed criminal offense and the unserved portion of the punishment under the previous court sentence.
5. The addition of additional types of punishment when imposing punishment based on the aggregate of sentences shall be carried out in accordance with the rules for imposing punishment based on the aggregate of criminal offenses.
Unlike the aggregate of criminal offenses, where all criminal offenses are committed before the first sentence is pronounced, an aggregate of sentences, in accordance with Article 60 of the Criminal Code, exists where a convicted person commits a new criminal offense after the pronouncement of a sentence but before fully serving the punishment. The characteristics of an aggregate of sentences are as follows: the existence of a sentence under which a punishment has been imposed on a person; the fact that this punishment has not yet been fully served by the convicted person; and the commission of a new criminal offense after the pronouncement of the sentence but before the punishment has been fully served.
Whereas, in the case of an aggregate of criminal offenses, all punishments imposed for individual crimes may be partially or fully combined, in the case of an aggregate of sentences, the unserved portion of the punishment under the previous sentence is partially or fully added to the punishment imposed under the latest sentence.
Imposition of punishment based on the aggregate of sentences is possible only where the punishment under the previous sentence has not been served either in respect of the principal punishment or in respect of the additional punishment.
The more stringent conditions for imposing punishment based on the aggregate of sentences are обусловлены by the increased degree of dangerousness of the offender's personality, since the offender commits a new crime before serving the punishment imposed under the previous sentence and, consequently, the corrective measures applied to the offender have not had a positive effect on them.
The limits for combining punishments in the case of an aggregate of sentences depend on whether or not the final punishment is associated with deprivation of liberty. If the final punishment based on the aggregate of sentences is not associated with deprivation of liberty, it may not exceed the maximum term or amount provided for this type of punishment by the General Part of the Criminal Code (Part 2 of Article 60 of the Criminal Code).
The final punishment based on the aggregate of sentences in the form of deprivation of liberty may not exceed twenty-five years. If the aggregate of sentences includes a sentence by which a person was found guilty of committing at least one especially grave crime for which punishment in the form of deprivation of liberty for a term of up to twenty years is provided, the final punishment based on the aggregate of sentences in the form of deprivation of liberty may not exceed thirty years. 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 (Part 3 of Article 60 of the Criminal Code).
When imposing punishment based on the aggregate of sentences, only the principle of addition shall apply, and the punishment, in terms of its duration or amount, must be greater than both the punishment imposed under the latest sentence and the unserved portion of the punishment under the previous court sentence.
The addition of additional types of punishment when imposing punishment based on the aggregate of sentences shall be carried out in accordance with the rules for imposing punishment based on the aggregate of criminal offenses (Part 5 of Article 60 of the Criminal Code).
In accordance with paragraph 16 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan “On Certain Issues of Imposing Criminal Punishment”:
“When imposing punishment based on the aggregate of sentences, courts must establish and indicate in the sentence the type and amount of the unserved portion of the punishment under the previous sentence, since, pursuant to Article 60 of the Criminal Code, this punishment is subject to full or partial addition to the punishment imposed under the new sentence.
The unserved portion of the punishment under the previous sentence shall be understood as follows:
in the case of a suspended sentence, as well as in the case of a deferment of the execution or serving of punishment on the grounds provided for in Article 74 and Part Two of Article 76 of the Criminal Code, or in accordance with the procedure provided for in Article 475 of the Criminal Procedure Code, or where Part Three of Article 75 of the Criminal Code is applied — the entire term of the punishment, with the exception of the period of detention in connection with apprehension or the imposition of a preventive measure in the form of arrest or house arrest, the execution of punishment, or the period during which the person was in a medical institution in connection with the application of compulsory medical measures;
in the case of conditional early release from punishment on the grounds provided for in Article 72 of the Criminal Code — the portion of the punishment from which the convicted person was actually conditionally and early released;
in the case of a sentence of restriction of liberty, involvement in community service, corrective labor, or a fine — the unserved punishment as of the date of pronouncement of the sentence. If the punishment under the previous sentence has been fully served, the rules of Article 60 of the Criminal Code shall not apply.
When imposing punishment based on the aggregate of sentences, courts must take into account the rules for combining punishments provided for in Article 61 of the Criminal Code.
If, under the previous sentence, a person was sentenced to deprivation of liberty conditionally and committed a new criminal offense during the probationary control period for which punishment in the form of deprivation of liberty is imposed, full or partial addition of punishments based on the aggregate of sentences is possible only in cases where the suspended sentence under the first sentence has been revoked in accordance with Article 64 of the Criminal Code.
Where a person's guilt in a crime committed before the pronouncement of the first sentence, under which the person was given a suspended sentence, is established and there are no grounds for revoking the suspended sentence, or where the punishments imposed under several sentences are not subject to combination in accordance with Article 61 of the Criminal Code, the sentence must indicate that the punishment under each sentence is to be executed independently.
In the event that a new crime is committed by a person serving a sentence in the form of deprivation of liberty, the unserved portion of the punishment shall be considered to be the term remaining at the time when the preventive measure in the form of detention was imposed in connection with the newly committed crime. If the said preventive measure was not imposed, the unserved portion of the punishment shall be the term remaining as of the time of pronouncement of the latest sentence.”
Paragraph 17 of the said Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan provides the following clarification:
“When punishments are combined in whole or in part based on the aggregate of criminal offenses or the aggregate of sentences, courts must comply with the procedure for determining the terms of punishment when combining them, as established by Article 61 of the Criminal Code. Within the meaning of the said article, the additional punishment unserved under the previous sentence shall be added, in whole or in part, to the final principal punishment, or shall be combined, in whole or in part, with the additional punishment of the same type imposed under the new sentence, within the limits of the term established for that type of additional punishment. The punishments specified in Part Two of Article 61 of the Criminal Code shall be executed independently.
If different types of principal punishments have been imposed by the court for crimes included in the aggregate of criminal offenses or the aggregate of sentences, then, when they are combined in whole or in part, the final punishment must be imposed on the basis of the more severe type of punishment.
If a person sentenced to deprivation of liberty for committing a crime commits a criminal misdemeanor after the pronouncement of the sentence but before fully serving the punishment, the rules of Article 60 of the Criminal Code shall not apply. In such cases, the sentences shall be executed independently.
If, under the first sentence, a person was sentenced to deprivation of liberty, corrective labor, or another punishment subject to execution, while under the second sentence a suspended punishment was imposed with the application of Article 63 of the Criminal Code, the court, when combining punishments in such cases, must indicate in the sentence that they are to be executed independently.”
According to paragraph 18 of the above-mentioned Regulatory Resolution:
“If a convicted person commits a new criminal offense during the period of deferment of the execution of punishment under the previous sentence, the court, in accordance with Article 60 of the Criminal Code, must add, in whole or in part, the unserved punishment under the previous sentence to the punishment imposed for the new criminal offense. In this case, it is not necessary to issue a ruling revoking the deferment of execution of the punishment under the first sentence.
Where a new crime is committed after the expiry of the period of deferment of serving the punishment and after the court ruling directing the convicted person to the appropriate institution to serve the punishment, in accordance with Part Three of Article 74 of the Criminal Code, has entered into legal force, the court, having determined the punishment for the new crime, is obliged to apply the rules for imposing punishment based on the aggregate of sentences provided for in Article 60 of the Criminal Code.
If, by the time the sentence in the new case is pronounced, after the expiry of the period of deferment of execution of the sentence, the court has not resolved the issue of releasing the convicted person from serving the punishment or directing them to the appropriate institution to serve the punishment, the court shall impose punishment only for the newly committed crime. In such cases, where there are other unexecuted sentences, the issue of execution of the sentence may be resolved in accordance with the procedure provided for in Articles 476, 477, and 478 of the Criminal Procedure Code of the Republic of Kazakhstan.”
Paragraph 19 of the above-mentioned Regulatory Resolution provides the following clarification:
“Additional punishments shall be imposed within the limits established by the article of the Criminal Code under which the defendant has been found guilty. Where an additional punishment is applied on the basis of Article 49 or 50 of the Criminal Code, its term may not exceed the limits established by law for this type of punishment.
Where the sanction of a criminal law provision provides for the possibility of applying or not applying an additional punishment, courts are obliged to consider the issue of its imposition and indicate in the sentence the reasons for the decision taken. In such cases, the non-imposition of an additional punishment shall not be indicated in the operative part of the sentence.
Where a person is convicted under articles of criminal law pursuant to which the imposition of an additional punishment is mandatory, the court may refrain from imposing it only if the conditions provided for in Article 55 of the Criminal Code are present, with the reasons for the decision taken being mandatory stated in the sentence.”
The rules for imposing punishment based on the aggregate of sentences apply to criminal offenses committed both by adults and by persons who had not reached the age of eighteen at the time of committing the criminal offenses. The difference lies in the fact that, when punishments are combined, deprivation of the right to engage in a certain activity is imposed on minors based on the aggregate of sentences for a term of up to two years; a fine and corrective labor — in an amount of up to one hundred monthly calculation indices; involvement in community service — for up to seventy-five hours; restriction of liberty — for up to two years; and, in the event of replacement of the unserved portion of a sentence in the form of deprivation of liberty with restriction of liberty — for the entire remaining unserved portion of the punishment; deprivation of liberty — for a term not exceeding ten years; and, in the case of murder under aggravating circumstances or an act of terrorism, or based on the aggregate of criminal offenses, one of which is murder under aggravating circumstances or an act of terrorism — for a term not exceeding twelve years. If, when imposing punishment based on the aggregate of sentences, a court of first instance has unlawfully applied the principle of absorption of one punishment by another or has done so because it was impossible to add the unserved portion of the punishment in accordance with the rules of Part 2 of Article 60 of the Criminal Code, the courts examining complaints and petitions, as well as protests against sentences and rulings, shall, in the event of mitigation of the punishment under the latest sentence, have the right to add the unserved punishment under the previous sentence in whole or in part, provided that the final punishment does not exceed the amount of punishment imposed by the sentence, taking into account the amendments made to it by subsequent judicial instances.
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 Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.
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