Commentary on Article 61. Procedure for Determining the Terms of Punishment When Combining Sentences of the Criminal Code of the Republic of Kazakhstan
1. In the case of partial or complete aggregation of punishments for a cumulative set of criminal offenses and a cumulative set of sentences:
1) one day of imprisonment corresponds to four monthly calculation indices of a fine or corrective labor, four hours of community service, one day of arrest, or one day of restriction of liberty;
2) one day of restriction of liberty corresponds to four monthly calculation indices of a fine or corrective labor, four hours of community service, or one day of arrest;
3) one day of arrest corresponds to four monthly calculation indices of a fine or corrective labor, or four hours of community service;
4) one hour of community service corresponds to one monthly calculation index of a fine or corrective labor;
5) one monthly calculation index of corrective labor corresponds to one monthly calculation index of a fine.
2. Deprivation of a special, military or honorary title, class rank, diplomatic rank, qualification class and state awards, deprivation of the right to hold certain positions or engage in certain activities, expulsion of a foreigner or stateless person beyond the borders of the Republic of Kazakhstan, confiscation of property, as well as compulsory medical measures, when combined with a fine, corrective labor, community service, restriction of liberty, arrest or imprisonment, shall be enforced independently.
By the Law of the Republic of Kazakhstan dated July 12, 2018, significant amendments and additions were introduced to the wording of Article 61 of the Criminal Code. Prior to the introduction of these amendments and additions, the commented article provided for only several types of punishment (arrest, restriction of liberty and community service) that were subject to the corresponding calculation when determining the final punishment in the form of imprisonment. This was due to the fact that imprisonment is the most severe type of punishment and other types of punishment must have their own coefficient when converting such type of punishment into a unit of punishment (one day) in the form of imprisonment. Following the amendments and additions, the legislator's approach changed fundamentally.
Thus, the commented article establishes the correspondence of various types of punishment in relation to one another. In doing so, all types of punishment are taken into account.
In particular, pursuant to Part 1 of Article 61 of the Criminal Code, in the case of partial or complete aggregation of punishments for a cumulative set of criminal offenses or a cumulative set of sentences:
one day of imprisonment corresponds to four monthly calculation indices of a fine or corrective labor, four hours of community service, one day of arrest, or one day of restriction of liberty;
one day of restriction of liberty corresponds to four monthly calculation indices of a fine or corrective labor, four hours of community service, or one day of arrest;
one day of arrest corresponds to four monthly calculation indices of a fine or corrective labor, or four hours of community service;
one hour of community service corresponds to one monthly calculation index of a fine or corrective labor;
one monthly calculation index of corrective labor corresponds to one monthly calculation index of a fine.
The Criminal Code provides for types of punishment which, under certain combinations, cannot be added to one another or substituted for one another, as provided for in Part 1 of Article 61 of the Criminal Code.
The enforcement of punishments imposed for a cumulative set of sentences or a cumulative set of criminal offenses in the event of such a combination shall be carried out independently. Only those types of principal punishment in respect of which Part 1 of Article 61 of the Criminal Code establishes the procedure for determining the terms and amounts of punishments when they are aggregated are subject to full or partial aggregation.
According to Part 2 of the commented article, deprivation of a special, military or honorary title, class rank, diplomatic rank, qualification class and state awards, deprivation of the right to hold certain positions or engage in certain activities, expulsion of a foreigner or stateless person beyond the borders of the Republic of Kazakhstan, confiscation of property, as well as compulsory medical measures, when combined with a fine, corrective labor, community service, restriction of liberty, arrest or imprisonment, shall be enforced independently.
The enforcement of these punishments for a cumulative set of criminal offenses or a cumulative set of sentences, where the above-mentioned combination of punishments applies, shall be carried out independently. For example, deprivation of the right to engage in certain activities imposed under a previous judgment and imprisonment determined under a subsequent judgment shall be enforced independently, and so forth.
According to Paragraph 17 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated June 25, 2015, “On Certain Issues of Sentencing”:
“When fully or partially aggregating punishments for a cumulative set of criminal offenses or a cumulative set of sentences, courts shall comply with the procedure for determining the terms of punishment when aggregating them, as established by Article 61 of the Criminal Code. Within the meaning of the said article, an unserved additional punishment under a previous judgment shall be fully or partially added to the final principal punishment, or shall be fully or partially aggregated with an additional punishment of the same type imposed under a new judgment, within the term established for that type of additional punishment. The punishments specified in Part Two of Article 61 of the Criminal Code shall be enforced independently.
If, under the first judgment, a person was sentenced to imprisonment, corrective labor or another punishment subject to enforcement, and under the second judgment a suspended sentence was imposed with the application of Article 63 of the Criminal Code, then, in such cases, when aggregating the punishments, the court must indicate in the judgment that they are subject to independent enforcement.”
When imposing punishment for a cumulative set of sentences, courts must take into account the rules for aggregating punishments provided for in Article 61 of the Criminal Code.
In cases where a person's guilt is established for a crime committed before the first judgment, by which that person was given a suspended sentence, and there are no grounds for revoking the suspended sentence, or where the punishments imposed under several judgments are not subject to aggregation in accordance with Article 61 of the Criminal Code, the judgment must specify that the punishment under each judgment is to be enforced independently.
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, Honored Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.
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