Commentary on Article 77. Criminal Record of the Criminal Code of the Republic of Kazakhstan
1. A person convicted of committing a criminal offence shall be considered to have a criminal record from the date on which the court's conviction becomes legally effective until the criminal record is expunged or removed. In accordance with this Code, a criminal record shall be taken into account when determining multiple offences, recidivism of criminal offences, and when imposing punishment.
2. A person released from punishment shall be recognized as having no criminal record.
3. A criminal record shall be expunged:
a) in respect of persons given a suspended sentence – upon expiry of the probation period;
b) in respect of military personnel who have served a sentence in the form of detention in a disciplinary military unit, restriction in military service, or arrest – upon actual completion of the sentence;
c) in respect of persons sentenced to penalties less severe than imprisonment – upon expiry of one year after serving the sentence;
d) in respect of persons sentenced to imprisonment for minor or medium-gravity criminal offences – upon expiry of three years after serving the sentence;
e) in respect of persons sentenced to imprisonment for serious criminal offences – upon expiry of six years after serving the sentence;
f) in respect of persons convicted of especially serious criminal offences – upon expiry of eight years after serving the sentence.
4. If a convicted person has been released from serving a sentence early in accordance with the procedure established by law, or if the unserved part of the sentence has been replaced with a more lenient type of punishment, the period for expungement of the criminal record shall be calculated based on the actual period of the sentence served, commencing from the date of release from serving the principal and additional penalties.
5. If, after serving the sentence, the convicted person has behaved impeccably, the court may, upon the person's application, remove the criminal record before the expiry of the period for its expungement. This provision shall not apply to persons sentenced to imprisonment for serious or especially serious criminal offences, as well as to persons whose punishment was imposed in cases of dangerous or especially dangerous recidivism of criminal offences.
6. If a convicted person commits another criminal offence before the expiry of the period for expungement of the criminal record, the running of the period for expungement shall be interrupted. The period for expungement of the criminal record for the first criminal offence shall be recalculated after the actual completion of the principal and additional penalties for the last criminal offence. In such cases, the person shall be considered to have a criminal record for both criminal offences until the expiry of the period for expungement of the criminal record for the most serious of them.
7. The expungement or removal of a criminal record shall annul all legal consequences associated with the criminal record.
A person convicted of committing a criminal offence shall be considered to have a criminal record from the date on which the court's conviction becomes legally effective until the criminal record is expunged or removed.
A criminal record is a legal consequence arising from the fact that a person has been sentenced to any type of punishment for a criminal offence, expressed in certain restrictions that do not constitute part of the punishment itself. The fact of having a criminal record affects the degree of public danger posed by the person and the act committed by that person.
The consequences of a criminal record also affect the legal status of a person who has served a sentence (for example, administrative-law consequences make it possible to establish administrative supervision over persons who have served their sentences but continue to pose a social danger to society; consequences arising from labour legislation are manifested in the fact that the period of serving a sentence in the form of imprisonment is not included in the total length of employment for the purposes of pension calculation, etc.). These restrictions pursue a preventive objective and are intended to prevent recidivism by persons who have previously been convicted of committing criminal offences.
If a person with a criminal record commits a new criminal offence, this entails a number of criminal-law consequences. In cases where a person has previously been convicted, the commission of a new criminal offence is regarded as an aggravating circumstance affecting liability. However, this circumstance may be considered aggravating only if the criminal record for the previous criminal offence (offences) has not been expunged or removed in accordance with the procedure established by law.
In a number of cases, the commission of a new criminal offence by a person with a criminal record entails a number of criminal-law consequences. For example, a criminal record may constitute a qualifying element of a newly committed criminal offence (subparagraph "c" of paragraph 3 of Article 175 of the Criminal Code; subparagraph "c" of paragraph 3 of Article 178 of the Criminal Code; subparagraph "d" of paragraph 3 of Article 179 of the Criminal Code).
In accordance with the Criminal Code of the Republic of Kazakhstan, a criminal record shall be taken into account when determining multiple offences, recidivism of criminal offences, and when imposing punishment.
The grounds for recognizing a person as having a criminal record are the person's conviction for a committed criminal offence and the imposition of any criminal punishment.
A person shall be considered to have a criminal record from the date on which the court's conviction becomes legally effective until the criminal record is expunged or removed (Part 1 of Article 77 of the Criminal Code).
The expungement or removal of a criminal record terminates the effect of all legal consequences associated with the criminal record. Based on the principle of humanism, the Criminal Code of the Republic of Kazakhstan establishes provisions according to which a person who has served a sentence cannot be considered to have a criminal record permanently, throughout their entire life.
Criminal law establishes two procedures for terminating a criminal record: a) by expungement; and b) by removal of the criminal record.
In the above cases, a person previously convicted of a criminal offence is legally recognized as having no criminal record. All legal consequences of the criminal record cease to exist.
Expungement of a criminal record is a procedure whereby the criminal record is annulled automatically upon the expiry of the periods established by law. No court decision or decision of any other authority is required for the expungement of a criminal record.
A criminal record shall be expunged:
- in respect of persons given a suspended sentence – upon expiry of the probation period;
- in respect of military personnel who have served a sentence in the form of detention in a disciplinary military unit, restriction in military service, or arrest – upon actual completion of the sentence;
- in respect of persons sentenced to penalties less severe than imprisonment – upon expiry of one year after serving the sentence;
- in respect of persons sentenced to imprisonment for minor or medium-gravity criminal offences – upon expiry of three years after serving the sentence;
- in respect of persons sentenced to imprisonment for serious criminal offences – upon expiry of six years after serving the sentence;
- in respect of persons convicted of especially serious criminal offences – upon expiry of eight years after serving the sentence.
The law establishes the procedure for calculating the period for expungement of a criminal record in cases where a convicted person has been released from serving a sentence early or where the unserved part of the sentence has been replaced with a more lenient type of punishment. In such cases, the period for expungement of the criminal record shall be calculated based on the actual period of the sentence served, commencing from the date of release from serving the principal and additional penalties.
The period for expungement of a criminal record is interrupted by the commission of a new criminal offence. In such a case, the period for expungement of the criminal record for the first criminal offence shall be recalculated after the actual completion of the principal and additional penalties for the last criminal offence. In this regard, the person shall be considered to have a criminal record for both criminal offences until the expiry of the period for expungement of the criminal record for the most serious of them (Part 6 of Article 77 of the Criminal Code).
Removal of a criminal record – recognition of a person as having no criminal record by a legislative act (an act of amnesty or pardon) or by a court decision. Thus, for example, if, after serving the sentence, the convicted person has behaved impeccably, the court may, upon the person's application, remove the criminal record before the expiry of the period for its expungement (Part 5 of Article 77 of the Criminal Code). This provision shall not apply to persons sentenced to imprisonment for serious or especially serious criminal offences, as well as to persons whose punishment was imposed in cases of dangerous or especially dangerous recidivism of criminal offences.
Rehabilitation must be distinguished from the expungement and removal of a criminal record. Unlike the expungement and removal of a criminal record in respect of a person who was lawfully prosecuted and convicted for a criminal offence committed, rehabilitation applies to a person who did not commit a criminal offence and who was unjustifiably prosecuted or unlawfully convicted.
Upon rehabilitation, the person is fully restored to their rights, and an apology is made on behalf of the State to that person (and, where necessary, to their relatives). Such an apology shall be published in the press at the person's place of residence, provided that the person or their relatives do not object to publication.
Damage caused to a citizen as a result of unlawful prosecution or unlawful conviction shall be compensated in full in accordance with the procedure established by law.
In conclusion, it should be noted that the expungement and removal of a criminal record annul all legal consequences associated with it (Part 7 of Article 77 of the Criminal Code).
Commentary of 2007 on the Criminal Code of the Republic of Kazakhstan
By I.Sh. Borchashvili, Honoured Figure of Kazakhstan, Doctor of Law, Professor, Academician of the Kazakhstan National Academy of Natural Sciences.
Date of amendment of the act: 02.08.2007
Date of adoption of the act: 02.08.2007
Place of adoption: NONE
Authority that adopted the act: 180000000000
Territorial scope: 100000000000
Registration number of the regulatory legal act assigned by the rule-making authority: 167
Status of the act: new
Area of legal relations: 028000000000
Form of the act: COMMENTARY
Legal force: 1900
Language of the act: Russian
Criminal Code, Commentaries on the Criminal Code, Normative Resolution of the Supreme Court of the Republic of Kazakhstan, Criminal Legislation, Regulatory Legal Acts.
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