Commentary on Article 89. Expungement Periods for a Criminal Record under the Criminal Code of the Republic of Kazakhstan

1. For persons who committed criminal offenses before reaching the age of eighteen, the periods for expungement of a criminal record provided for in Article 79 of this Code shall be reduced and shall accordingly be equal to:

1) the actual serving of penalties less severe than imprisonment;

2) one year after serving a sentence of imprisonment for a minor or medium-gravity crime;

3) two years after serving a sentence of imprisonment for a serious crime;

4) three years after serving a sentence of imprisonment for an especially serious crime.

A criminal record is a criminal-law characteristic of the personality of an offender. Consequently, the personal characteristics of a minor are taken into account when applying this legal institution.

The age from 14 to 18 is a period of social adaptation of an individual, which requires considerable effort from a minor. On the other hand, the natural age-related needs of a minor are quite substantial and, in some cases, exceed those of an adult (the need for self-assertion, the desire to live in a reasonable and fair society), whereas the opportunities available to a minor to satisfy these needs are very limited. This often leads minors to violate the rules and standards accepted in society and contributes to the commission of crimes. Furthermore, due to their psychological immaturity, minors cannot be held responsible for the crimes they commit to the same extent as adult offenders. The socialization of an individual (acquiring a profession and financial independence, starting a family) leads to a very rapid change in a young person's attitude towards society and to a more or less complete acceptance of social norms. The high rate of changes in the personality of a minor and the requirement for a fair correlation between the crime and its legal consequences necessitate the existence of special rules governing the criminal records of minors.

The provisions established in Article 79 of the Criminal Code also apply to minors.

For persons who committed crimes while under the age of majority, the periods for expungement of a criminal record are significantly reduced compared with the periods established in Part 3 of Article 79 of the Criminal Code. This reflects the principle of humanism towards minors, since the earlier expungement of a criminal record removes strict legal restrictions and other negative consequences associated with its existence.

The periods for expungement of a criminal record are established depending on the category of the crime and the type of punishment. The periods for expungement of a criminal record for persons who committed a crime before reaching the age of 18 are as follows:

actual serving of penalties less severe than imprisonment;

one year after serving a sentence of imprisonment for a minor or medium-gravity crime;

two years after serving a sentence of imprisonment for a serious crime;

three years after serving a sentence of imprisonment for an especially serious crime.

After a minor has served penalties less severe than imprisonment, the criminal record is expunged upon actual completion of the sentence. After serving a sentence of imprisonment for a minor or medium-gravity crime, the period for expungement of a criminal record for a minor is established at 1 year, whereas for adults it is 3 years. For adults, the legislator determines the periods for expungement of a criminal record depending on whether the person served a sentence of imprisonment for committing a serious or especially serious crime. After serving a sentence of imprisonment for committing a serious crime, 6 years must elapse; for committing an especially serious crime — 8 years. For minors, the period for expungement of a criminal record after serving a sentence of imprisonment for committing a serious crime is established at 2 years, and for an especially serious crime — 3 years.

Article 89 of the Criminal Code provides for minors only the expungement, and not the removal, of a criminal record, which is associated with the significant reduction of the periods for expungement of a criminal record. The provisions of the commented article must also be applied in cases where minors have reached the age of majority.

According to Part 3 of Article 14 of the Criminal Code, a criminal record for crimes committed before the age of eighteen is not taken into account when determining recidivism.

The general provisions on criminal records provided for in Article 79 of the Criminal Code apply to minors (Parts 1 and 8 of Article 79 of the Criminal Code). Thus, according to Part 1 of Article 79 of the Criminal Code, a person convicted of committing a crime is considered to have a criminal record from the date on which the court's conviction enters into legal force until the moment the criminal record is expunged or removed.

In accordance with Part 8 of Article 79 of the Criminal Code, if a convicted person commits another crime before the expiration of the period for expungement of the criminal record, the running of the period for expungement of the criminal record is interrupted. The period for expungement of the criminal record for the first crime shall be calculated anew after the actual serving of the principal and additional punishments for the last crime. In such cases, the person is considered to have a criminal record for both crimes until the expiration of the period for expungement of the criminal record for the more serious of them.

The provisions concerning the absence of a criminal record for persons released from punishment are regulated by Part 2 of Article 79 of the Criminal Code, according to which a person released from punishment, as well as a person convicted of committing a criminal misdemeanor, is recognized as having no criminal record.

The provisions concerning the expungement of a criminal record in respect of persons given suspended sentences apply upon expiration of the probationary control period (Subparagraph 1) of Part 3 of Article 79 of the Criminal Code), as well as the provisions concerning the removal of a criminal record (Part 7 of Article 79 of the Criminal Code). At the same time, the application of these provisions is possible only where the minor demonstrates exemplary conduct and an honest attitude towards work.

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 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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