Commentary to article 13. Recidivism of crimes The Criminal Code of the Republic of Kazakhstan of the Criminal Code of the Republic of Kazakhstan
1. A recidivism of crimes is the commission of an intentional crime by a person who has a criminal record for a previously committed intentional crime.
2. Recidivism is considered dangerous:
a) when a person commits an intentional crime for which he has been sentenced to imprisonment, if that person has previously been sentenced to imprisonment twice for intentional crimes;
b) when a person commits a serious crime, if he has previously been convicted of a serious crime.
3. Recidivism of crimes is considered especially dangerous:
a) when a person commits an intentional crime for which he is sentenced to imprisonment, if that person has previously been sentenced to imprisonment at least three times for serious crimes or intentional crimes of moderate severity.;
b) when a person commits a serious crime for which he is sentenced to imprisonment, if that person has previously been twice sentenced to imprisonment for committing a serious crime or has been convicted of a particularly serious crime.;
c) when a person commits a particularly grave crime, if he has previously been convicted of a grave or especially grave crime.
4. Criminal records for crimes committed by a person under the age of eighteen, as well as criminal records that have been removed or expunged in accordance with the procedure established by this Code, shall not be taken into account when recidivism is recognized.
5. Recidivism of crimes shall entail a more severe punishment on the basis and within the limits provided for by this Code. Relapse is a type of multiplicity, along with repetition and totality.
13 of the Criminal Code of the Republic of Kazakhstan for the first time provides a legislative definition of the concept of recidivism under the criminal law of the Republic of Kazakhstan. A recidivism of crimes is the commission of an intentional crime by a person who has a criminal record for a previously committed intentional crime. At the same time, the Criminal Code of 1997 does not include a provision on the conditions for recognizing a person as a particularly dangerous recidivist by a court verdict, and this is justified, since assigning the designation of a "particularly dangerous recidivist" to a convicted person by a court verdict under the Criminal Code of 1959. This led to violations of the principle of equality before the law and the court, exaggeration of the personal qualities of the subject of the crime when deciding on the grounds and limits of criminal responsibility, while the danger of the act is determined by its objective properties, in particular the nature and extent of the damage caused, the situation and method of committing the crime and other circumstances of an objective nature.
Currently, the behavior of the person who committed the crime is considered recidivistic, but not the identity of the convicted person. According to the definition, recidivism can only occur when committing intentional crimes. Even having multiple convictions for reckless crimes does not constitute a recidivism.
The following signs of relapse follow from the definition of relapse::
1) the commission of two or more crimes by a person at different times.
2) Crimes must be intentional.
3) having a criminal record for a previous crime.
The recurrence of crimes indicates an increased social danger of the criminal, because the goals of the punishment applied to him for the previous crime were not achieved. The presence of a recurrence of crimes must necessarily be taken into account when bringing the perpetrator to criminal responsibility.
The resolution of the Plenum of the Supreme Court of the Republic of Kazakhstan, in its resolution dated May 25, 1994 "On the practice of judicial review of criminal cases of recidivism", states that it is necessary to "carefully and comprehensively verify information about past convictions, previously imposed and actually served sentences, the grounds for release from serving sentences, as well as to find out other personal information the defendant."
On the basis of Part 1 of Article 77 of the Criminal Code of the Republic of Kazakhstan, a person convicted of committing a crime is considered to be convicted from the date of entry into force of the court verdict until the date of repayment or removal of the criminal record.
According to the degree of public danger, recidivism is divided into simple (part 1 of Article 13 of the Criminal Code), dangerous (part 2 of Article 13 of the Criminal Code) and especially dangerous (part 3 of Article 13 of the Criminal Code).
A simple relapse is recognized:
The commission of an intentional crime by a person with a criminal record for a previously committed intentional crime, i.e. it is a relapse that does not fall under the signs of a dangerous or particularly dangerous relapse.
The legal significance of simple recidivism lies in the fact that, firstly, it is provided for in the articles of the Special Part as a qualifying feature of crimes (for example, Part 2 of art. 190 of the Criminal Code illegal entrepreneurship committed by a person previously convicted of illegal entrepreneurship or illegal banking activities), secondly, its presence is recognized as an aggravating circumstance (paragraph "a" of part 1 of Article 54 of the Criminal Code), and the punishment imposed by the court may not be less than one third of the maximum term and amount of the most severe type of punishment provided for for the committed crime (part 2 of Article 59 of the Criminal Code).
It is recognized as a dangerous relapse:
1) The commission by a person of an intentional crime for which he is sentenced to imprisonment, if this person has previously been sentenced to imprisonment twice for an intentional crime.
2) The commission of a grave crime by a person if he has previously been convicted of a grave crime. Recidivism of crimes is considered especially dangerous:
1) When a person commits an intentional crime for which he is sentenced to imprisonment, if that person has previously been sentenced to imprisonment at least three times for serious crimes or intentional crimes of moderate severity.
2) When a person commits a grave crime for which he is sentenced to imprisonment, if that person has previously been twice sentenced to imprisonment for committing a grave crime or has been convicted of a particularly grave crime.
3) When a person commits a particularly grave crime, if he has previously been convicted of a grave or especially grave crime.
The legal significance of dangerous and especially dangerous recidivism lies in the fact that, firstly, they are recognized as an aggravating circumstance and are taken into account when the court determines the punishment for dangerous recidivism - at least two thirds of the maximum term and amount of the most severe type of punishment provided for the crime committed (Part 2 of Article 59 of the Criminal Code), secondly, are particularly qualifying signs of certain crimes (for example, paragraph "d" of Part 3 of Article 179 of the Criminal Code - robbery committed by a person who had previously been convicted two or more times for embezzlement or extortion).
In addition to the types of recidivism prescribed by law, there are other types in the theory of criminal law. Thus, according to the nature of the crimes committed, recidivism is usually divided into general and special.
A general recidivism is the commission of any new crime by a person with a criminal record. For example, a person with a criminal record for fraud (Article 177 of the Criminal Code) commits hooliganism (Article 257 of the Criminal Code).
A special recidivism is the commission of a new identical or homogeneous crime by a person with a criminal record.
The legal significance of general and special recidivism lies in the fact that special recidivism, like general recidivism, is considered by the court as a circumstance aggravating responsibility and punishment. If a general recidivism occurs while serving a sentence for a previously committed crime, the punishment is imposed according to the rules established by Article 60 of the Criminal Code of the Republic of Kazakhstan for a set of sentences. If the convicted person has served a term of imprisonment for a previously committed crime, then the term of imprisonment for the newly committed crime is assigned in a high-security penal colony. And, thirdly, a special recidivism entails the same consequences as a general one if it occurs while the convicted person is serving a sentence for a previously committed crime or if the subject was serving a custodial sentence for the first crime.
According to the number of criminal records, single (simple) relapse and multiple (complex) relapse are distinguished.
A single (simple) recidivism of crimes consists in the commission of an intentional crime by a person with one criminal record.
Multiple (complex) recidivism is the commission of a new intentional crime by a person with two or more criminal records.
Depending on the place where the crime was committed, penitentiary recidivism is distinguished - the commission of a new intentional crime by a person serving a sentence in places of deprivation of liberty.
It should be noted that, according to Part 4 of Article 13 of the Criminal Code of the Republic of Kazakhstan, a criminal record for crimes committed by a person under the age of eighteen, as well as criminal records withdrawn or expunged in accordance with the procedure established by this Code, are not taken into account when recognizing recidivism.
Paragraph 22 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated April 11, 2002 "On judicial practice in cases of juvenile delinquency and their involvement in criminal and other antisocial activities" states: "clarify that, according to Part 4 of Article 13 of the Criminal Code, convictions for crimes committed under the age of eighteen are not taken into account when recognizing recidivism of crimes".
Paragraph 22 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated April 11, 2002 "On judicial practice in cases of juvenile delinquency and their involvement in criminal and other antisocial activities" states: "clarify that, according to Part 4 of Article 13 of the Criminal Code, convictions for crimes committed under the age of eighteen are not taken into account when recognizing recidivism of crimes".
The resolution of the Plenum of the Supreme Court of the Republic of Kazakhstan "On the observance by courts of legality in the imposition of criminal punishment" dated April 30, 1999, states that "courts should bear in mind that, in accordance with Article 13 of the Criminal Code, not any outstanding or outstanding criminal convictions are the basis for recognizing recidivism, but only those related to with the conviction of a person to imprisonment for crimes committed at the age of majority." At the same time, convictions for crimes committed under the age of a minor that have not been removed or expunged in accordance with the procedure established by law form a qualifying sign of repetition (see paragraph "b" of Part 2 of Article 175 of the Criminal Code). A conviction to imprisonment for past and newly committed intentional crimes in paragraphs "a" of Parts 2 and 3 of art. 13 of the Criminal Code of the Republic of Kazakhstan is understood to mean a person who was previously sentenced and sentenced to imprisonment by a court verdict.
A person who was previously sentenced to imprisonment should be considered a person who in the past, by a court verdict that entered into force, was sentenced to imprisonment: he was subject to serving in a correctional institution, including when the person did not serve this sentence (for example, the person evaded serving it, was released from serving the sentence on 73 of the Criminal Code, except in cases when the person was released from serving his sentence in accordance with Article 75 of the Criminal Code due to the expiration of the statute of limitations of the conviction; conditionally (art. 63 of the Criminal Code of the Republic of Kazakhstan) with the application of deferred execution of the sentence (Articles 72 and 74 of the Criminal Code). In this regard, when recognizing a recidivism, a person's previous unreturned and outstanding criminal record should be taken into account even in the case when imprisonment was imposed conditionally (with the application of Article 63 of the Criminal Code) or with the application of a suspended sentence (art. 72 and 74 of the Criminal Code), if this person has committed a new crime during the probation period or during the period of postponement of execution of the sentence, respectively, or when the suspended sentence or postponement is lifted and the convicted person is sent to an appropriate institution to serve the custodial sentence.
Persons who have been sentenced to imprisonment cannot be considered as those who have been sentenced to imprisonment (correctional labor, restriction of liberty, etc.) on the grounds provided for in Part 4 of art. 43 and Part 2 of art. 45 of the Criminal Code, has been replaced by imprisonment.
One can hardly agree with the opinion that recidivism can be dangerous in cases where the perpetrator of crimes preceding the last conviction, for example, was sentenced to a non-custodial sentence, but was released from serving it as a result of acts of amnesty, pardon, or due to the expiration of the statute of limitations of a court verdict.
Firstly, the law links dangerous and especially dangerous recidivism only with a custodial sentence, and not to other punishments.
Secondly, release from serving a sentence as a result of the issuance of acts of amnesty or pardon may be accompanied by the removal of a criminal record, and, consequently, it loses its legal significance and is not a basis for recognizing the presence of recidivism.
Thirdly, the expiration of the statute of limitations of a conviction precludes the existence of a criminal record. Consequently, in all these cases, there is no legal basis for recognizing the presence of a dangerous relapse.
In Part 5 of Article 13 of the Criminal Code of the Republic of Kazakhstan, the legislator establishes the legal consequences of the recurrence of crimes, which are expressed in the fact that the recurrence of crimes entails more severe punishment on the basis and within the limits provided for by this Code.
In certain articles of the Special Part of the Criminal Code, the legislator recognizes recidivism as a qualifying feature, for example, paragraph "c" of Part 3 of Article 175; paragraph "c" of Part 3 of Article 176; paragraph "c" of Part 3 of Article 177; paragraph "c" of Part 3 of Article 178; paragraph "c" of Part 3 of Article 179; paragraph "d" of part 3 of Article 181; paragraph "c" of part 2 of Article 183; paragraph "c" of part 2 of Article 190; and others. If recidivism is not taken into account in the qualification (due to the fact that the legislator does not provide for it as a qualifying feature), then in accordance with art. 54 of the Criminal Code of the Republic of Kazakhstan, the court takes it into account when imposing punishment as an aggravating circumstance.
The resolution of the Plenum of the Supreme Court of the Republic of Kazakhstan "On the practice of judicial review of criminal cases of recidivism" dated May 25, 1994, states that "the commission of a crime in the past, if it is provided by law as a qualifying feature of a newly committed crime, cannot simultaneously be recognized as an aggravating circumstance."
The commission of a crime by a person who has previously committed a crime may be considered as a qualifying feature of a crime or an aggravating circumstance if the guilt of a previously committed crime is established by a court verdict and the criminal record for it has not been expunged or withdrawn, or when the charge of a previously committed crime is brought against the defendant in this case. and the court found him guilty on this charge.
The legal consequences of recidivism are:
1) recognition of recidivism in the presence of a criminal record as a qualifying sign of certain crimes;
2) recognition of recidivism as an aggravating circumstance;
3) special procedure for sentencing;
4) the appointment of a certain type of regime for serving imprisonment.
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
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