Commentary to article 11. The frequency of crimes The Criminal Code of the Republic of Kazakhstan of the Criminal Code of the Republic of Kazakhstan

     1. The commission of two or more acts provided for in the same article or part of the article of the Special Part of this Code is recognized as a repetition of crimes.      

2. The commission of two or more crimes provided for in various articles of the Special Part of this Code may be recognized as repeated only in cases specifically specified in this Code.      

3. A crime shall not be recognized as having been committed repeatedly if a person has been legally released from criminal responsibility for a previously committed crime, or the criminal record for a crime previously committed by a person has been expunged or withdrawn, or the statute of limitations for bringing such a crime to criminal responsibility has expired.      

4. A continuing crime is not recognized as repeated, that is, a crime consisting of a number of identical criminal acts that are covered by a single intent and purpose and form one crime as a whole.      

5. In cases where the repetition of crimes is provided for by this Code as a circumstance entailing a more severe punishment, the crimes committed by the person are qualified according to the relevant part of the article of the Special Part of this Code, which provides for punishment for the repetition of crimes.       The recurrence of crimes is a system of stable relationships that has a peculiar structure, consisting, as a rule, of identical (identical), and in some cases, of homogeneous crimes.      

In the criminal law literature, there are two types of repetition: general and special repetition.      

Common repetition is the commission of two or more acts stipulated by the same article or part of the article of the Special Part of the Criminal Code of the Republic of Kazakhstan. Such repetition is referred to in Part 1 of Article 11 of the Criminal Code of the Republic of Kazakhstan.      

Special repetition refers to the commission by the perpetrator of two or more identical or identical crimes provided for in various articles of the Special Part of the Criminal Code, only in cases specifically specified in the Criminal Code of the Republic of Kazakhstan. It is precisely this kind of repetition that is referred to in Part 2 of Article 11 of the Criminal Code of the Republic of Kazakhstan.       Only identical and homogeneous crimes can be repeated.      

Such acts, the objective and subjective characteristics of which completely coincide, should be recognized as identical (identical).      

Thus, two thefts committed by the same person differ in place, time and other factual circumstances, but are identical (identical) in terms of the corpus delicti provided for in art. 175 of the Criminal Code of the Republic of Kazakhstan.      

In accordance with the normative resolution of the Supreme Court of the Republic of Kazakhstan dated December 25, 2006 "On the qualification of multiple and aggregate crimes", multiple offenses involve the commission by the same person of several crimes provided for in the same article or the same part of the article of the Special Part of the Criminal Code of the Republic of Kazakhstan. In cases where the same person commits two or more crimes provided for in various articles of the Special Part of the Criminal Code, committed in accordance with the second part of art. 11 of the Criminal Code may also be recognized as repeated in cases where this is specifically stated in the criminal law.      

In some cases specifically provided for by the Criminal Code, homogenous, i.e. related crimes are recognized as repeated. Crimes that infringe on the same or similar immediate object are recognized as homogeneous, and are committed with the same form of guilt and for similar motives with direct intent for selfish motives. For example, theft, robbery, robbery, fraud aimed at seizing other people's property.      

Consideration of the recurrence of homogeneous crimes is explicitly provided for in paragraph 3 of the note to Article 175 of the Criminal Code of the Republic of Kazakhstan, which states that repeated in Articles 175-181 of this Code is recognized as the commission of a crime if it was preceded by the commission of one or more crimes provided for in these articles, as well as Articles 248, 255, 260 of this Code. Articles 248, 255, 260 of the Criminal Code provide for the theft or extortion of radioactive materials, weapons, ammunition, explosives and explosive devices, narcotic drugs or psychotropic substances.      

Consequently, theft of other people's property will be recognized as repeated not only when it was preceded by another episode of theft, but also in cases where the perpetrator had previously committed any of the above crimes.      

The qualifying feature of repeated commission of a crime also covers cases of criminal record of previously committed crimes, provided that the criminal record for them has been withdrawn or expunged and if the criminal record is not specified in the disposition of the article of the Criminal Code as an independent qualifying feature of this crime. When classifying an act on the basis of repetition, previous convictions that have not been dismissed or outstanding for crimes committed under the age of a minor are not taken into account.      

If the repetition in the criminal law norm is indicated as a qualifying feature, then the commission by the same person of several identical or homogeneous crimes is subject to qualification in general according to the relevant article (part of the article) of the Criminal Code, which provides for responsibility for the repeated commission of this crime.      

When committing several crimes provided for in different parts of the same article of the Criminal Code, providing for different qualifying features, these acts are generally subject to qualification only according to the part of the article that establishes a more severe punishment and covers the qualifying features. In such cases, the qualifying signs of a crime established in relation to the acts specified in other parts of this article of the criminal law are subject to imputation and must be indicated in the verdict.      

Similarly, one act is subject to qualification, in which, along with the repetition, other qualifying features specified in other parts of the article of the Criminal Code are also established. (For example, when committing theft, in respect of which a qualifying feature is established - the repetition specified in part two of Article 175 of the Criminal Code, and other qualifying features specified in part three of this article, the act is subject to qualification under part three of Article 175 of the Criminal Code). At the same time, the qualifying signs of a crime established in relation to the acts specified in other parts of this provision of the criminal law are subject to imputation and must be indicated in the verdict. The sign of repetition does not take into account if previous unreturned and outstanding criminal records serve as the basis for qualifying an act on the basis of its commission by a person who has been convicted of a similar crime two or more times.      

The Plenum of the Supreme Court of the Republic of Kazakhstan, in its resolution dated December 22, 1995, with amendments and additions dated December 20, 1999, "On the practice of applying legislation on liability for bribery by courts," stated that "repeated receipt, giving of bribes or mediation in bribery involves the commission of the same crime at least twice, if not the statute of limitations for criminal prosecution has expired." Receiving a bribe from several persons at the same time, if a separate action is performed in the interests of each payer, should be qualified as receiving a bribe repeatedly.       A crime is not recognized as having been committed repeatedly in the following cases::      

- if the criminal consequences have been annulled (Part 3 of Article 11 of the Criminal Code), i.e. if a person has been released from criminal liability for a previously committed crime on the grounds specified in the General Part of the Criminal Code (Articles 65, 66, 67, 68 of the Criminal Code); - on the basis of an act of amnesty (part 2 of Article 76 of the Criminal Code); - or a criminal record for a previously committed crime has been expunged or withdrawn (Article 77 of the Criminal Code);      

- or the statute of limitations for criminal prosecution has expired (Article 69 of the Criminal Code);      

According to Part 4 of Article 11 of the Criminal Code of the Republic of Kazakhstan, a repeated ongoing crime consisting of a number of identical criminal acts that are covered by a single intent and purpose and form one crime as a whole is not recognized.      

In this part, the legislator identified the signs of a single ongoing crime, from which repeated commission of an act should be distinguished. An objectively ongoing crime consists of a number of identical or identical criminal acts (acts of inaction), on the subjective side it is characterized by a single intent and purpose. The similarity of ongoing and repeatedly committed crimes lies in the fact that both involve the commission of not one, but several homogeneous or identical actions, each of which falls under the criteria of a specific article of the Criminal Code. However, unlike repeated crimes, ongoing crimes are characterized by a deep internal connection, the absence of significant gaps between episodes linked together by the criminal intent of the perpetrator (the presence of the same form of guilt, the same motives and a single goal).      

For example: embezzlement committed by misappropriating entrusted money in small amounts to receive a significant amount (art. 176 of the Criminal Code of the Republic of Kazakhstan). Individual episodes of theft here do not represent an independent corpus delicti, they are connected in one theft by a single criminal intent.      

The Supreme Court of the Republic of Kazakhstan, in its regulatory resolution dated December 25, 2006 "On the qualification of the repetition and totality of crimes", stated in paragraph 4 that "it is necessary to distinguish the repetition of crimes from ongoing crimes. The commission by the same person of two or more criminal acts, similar to each other in the method of commission and object, characterized by a single form of guilt and united by a single purpose, in material terms and the same consequences, does not form a repetition. In such cases, everything done as a whole should be recognized as a single ongoing crime and qualified under one article or part of the article of the Criminal Code, which provides for responsibility for the commission of this crime.      

If, during the period of the ongoing crime, amendments were made to the criminal law establishing stricter liability for this act, then all episodes of the ongoing crime are subject to qualification as a single crime under the new law, if at least one of the episodes was committed during the period of the new version of the law.     

 If the same person commits another crime during the period of the ongoing crime, the signs of which are not covered by the disposition of the article of the Criminal Code providing for responsibility for the ongoing crime (for example, fraud was committed during the period of malicious evasion of payment of funds for the maintenance of children), the actions of the perpetrator are subject to qualification according to the totality of crimes under the relevant article providing for responsibility for the ongoing crime, and according to the article of the Criminal Code, which provides for liability for another crime.      

Repetition should also be distinguished from continuing crimes, which are characterized by the continuous implementation of the composition of a certain criminal act and are actions or omissions associated with the subsequent prolonged failure to fulfill the duties assigned to the perpetrator by law under threat of criminal prosecution. Continuing crimes include desertion (Article 373 of the Criminal Code); malicious evasion from repayment of accounts payable (Article 195 of the Criminal Code), etc. The legal significance of repetition is considered by the legislator in two meanings.:      

1) as an aggravating circumstance (paragraph "a" of Part 1 of Article 54 of the Criminal Code of the Republic of Kazakhstan);      

2) as a qualifying feature of certain types of crimes in articles of the Special Part of the Criminal Code of the Republic of Kazakhstan (Articles 175, 176, 177, 178, 179, etc.).      

In this regard, Part 5 of Article 11 of the Criminal Code clarifies that in cases where the repetition of crimes is provided for by this Code as a circumstance entailing a more severe punishment, crimes committed by a person are qualified under the relevant part of the article of the Special Part of this Code, which provides for punishment for repeated crimes.  For example, in Article 175 of the Criminal Code of the Republic of Kazakhstan "Theft", Article 176 of the Criminal Code of the Republic of Kazakhstan "Appropriation or embezzlement of entrusted property of others", Article 177 of the Criminal Code of the Republic of Kazakhstan "Fraud", Article 178 of the Criminal Code of the Republic of Kazakhstan "Robbery", etc. For example, in the qualified formulations of these standards, the sign of "repetition" is provided as a qualifying feature. In cases where the legislator has not provided for "repetition" as a qualifying feature for an act, and the person commits this act not for the first time, this fact is taken into account by the court when imposing punishment as an aggravating circumstance.      

The resolution of the Plenum of the Supreme Court of the Republic of Kazakhstan dated April 30, 1999 "On the observance by courts of legality in the imposition of criminal punishment" states that "in cases where a particular circumstance provided for in Articles 53 or 54 of the Criminal Code of the Republic of Kazakhstan is indicated in the disposition of the article of the Special Part of the Criminal Code of the Republic of Kazakhstan as one of the signs of a crime, it should not be taken into account when imposing punishment for the commission of this crime as mitigating or aggravating responsibility and punishment."      

Repetition as a qualifying sign of a specific crime will be not only when the subject in the first and second cases commits a completed crime or is the perpetrator, but also when he committed a criminally punishable preparation or attempt, as well as when he performed the functions of an accomplice (organizer, instigator, accomplice).       This conclusion follows from the fact that the law recognizes as a crime not only completed criminal activity, but also unfinished, and not only the actions of the perpetrator, but also the actions of other accomplices.

Commentary from 2007 to the Criminal Code of the Republic of Kazakhstan from the Honored Worker of Kazakhstan, Doctor of Law, Professor, Academician of the Kazakhstan National Academy of Natural Sciences BORCHASHVILI I.Sh.                  

Date of amendment of the act:  08/02/2007 Date of adoption of the act:  08/02/2007 Place of acceptance:  NO Authority that adopted the act: 180000000000 Region of operation:  100000000000 NPA registration number assigned by the regulatory body:  167 Status of the act:  new Sphere of legal relations:  028000000000 Report form:  COMM Legal force:  1900 Language of the Act:  rus

 Constitution Law Code Standard Decree Order Decision Resolution Lawyer Almaty Lawyer Legal service Legal advice Civil Criminal Administrative cases Disputes Defense Arbitration Law Company Kazakhstan Law Firm Court Cases