Commentary to article 398. The operative part of the conviction The Criminal Procedure Code of the Republic of Kazakhstan

The operative part of the indictment must specify:

1) the surname, first name and patronymic (if any) of the defendant;

2) the decision to find the defendant guilty of committing a criminal offense;

3) the criminal law (article, part, paragraph) according to which the defendant was found guilty;

4) the type and amount of the main and additional punishments imposed on the defendant for each criminal offense of which he was found guilty, as well as the decision to cancel or maintain the suspended sentence under the previous sentence, cancel the exemption from criminal liability with the establishment of a guarantee under the previous sentence and the final penalty to be served on the basis of articles 58 and 60 of the Criminal Code of the Republic of Kazakhstan.

When imposing a custodial sentence, the court shall indicate in the verdict the type and regime of the institution in which the convicted person must serve his sentence, and when imposing punishments not related to isolation of the convicted person from society, it shall establish the obligation for him to appear at the probation service for registration within ten days after the sentence enters into force (as amended. ZRK dated 07.11.2014);

5) the duration of probation control in case of conditional conviction, restriction of liberty and the duties imposed on the convicted person, as well as the consequences of their non-fulfillment provided for by law, the duration of the guarantee period in case of release from criminal liability with the establishment of a guarantee and the consequences of committing a new criminal offense during this period; ZRK dated 07.11.2014);

6) a decision to deprive (submit a submission to the President of the Republic of Kazakhstan on deprivation) of a convicted person of an honorary, military, special or other rank, class rank, diplomatic rank, qualification class, state awards;

7) a decision to set off pre-trial detention if, prior to the verdict, the defendant was detained or preventive measures were applied to him in the form of detention, house arrest, or he was placed in a special medical organization.;

8) a decision on the application of compulsory medical treatment and the establishment of guardianship over the convicted person;

9) the decision on the measure of restraint in respect of the defendant before the verdict comes into force;

10) the decision on the postponement of the execution of the basic punishment;

11) a decision on punishment in the form of deprivation of the right to hold a certain position or engage in a certain activity.

If the defendant is charged under several articles (parts of articles, paragraphs) of the criminal law, the operative part of the sentence must indicate which of them the defendant was acquitted and which were convicted.

If the defendant is released from serving his sentence or is sentenced without imposing punishment or applying a delay in serving his sentence, this is indicated in the operative part of the sentence.

The operative part of the guilty verdict is the final part of the verdict and should follow from the introductory and descriptive - motivational parts. In this part of the conviction, a decision is formulated to find the defendant guilty of committing a crime, indicating the norm of the criminal law providing for this crime and the punishment for it. It sets out the decision on the type and amount of the main and additional punishment that the court considered necessary to impose on the perpetrator, as well as indicates the type and regime of the correctional institution in which the convicted person will serve his sentence.

If the defendant is found guilty of committing several crimes, the initial punishment (main and additional) is imposed for each crime separately, after which the final penalty is imposed (Article 58 of the Criminal Code). If the sentence has not been served under the previous sentence, the punishment is imposed according to the rules of art. 60 of the Criminal Code. If there is a suspended sentence that has not been served, release from criminal liability with the establishment of a guarantee for a previous sentence, then the issue of their cancellation is resolved first, and then the issue of sentencing according to the rules of art. 60 of the Criminal Code. The type of correctional institution is assigned after the final punishment is imposed.

If the court came to the conclusion that the punishment was imposed below the lower limit than stipulated by the sanction, or that the mandatory additional punishment was not applied, then in the operative part, before specifying the term of punishment, the court refers to art. 55 of the Criminal Code, which provides for the imposition of punishment below the lower limit.

When applying a suspended sentence, the court, after sentencing, refers to Article 63 of the Criminal Code and indicates the duration of probation control. If the defendant commits several crimes, the decision on the imposition of a suspended sentence is indicated after the imposition of punishment for the totality of crimes. It also indicates the obligation to report to the probation service for registration after the verdict enters into force. The operative part of the sentence specifies the duties that are imposed on the convicted person, as well as the consequences of their non-fulfillment.

The operative part of the indictment indicates the deprivation of the convicted person's titles, ranks, ranks, awards, and it must be correctly stated what the convicted person is deprived of.

When deciding on the confiscation of property, it is indicated in what amount the property is subject to confiscation – in whole, in part, or specific items are listed.

In the same way, the operative part indicates the offsetting of the time spent in pre-trial detention, house arrest, etc.; on the use of compulsory medical measures, on the measure of restraint until the sentence enters into force, on the postponement of the execution of the main sentence.

When a defendant is acquitted of certain episodes of a crime or articles of a criminal law, the operative part of the verdict indicates which episodes or articles the defendant was convicted of and which ones he was acquitted of.

The operative part of the sentence indicates the release of the defendant from serving his sentence or the imposition of a sentence without sentencing or the application of a delay in serving his sentence.

Commentary to the Criminal Procedure Code of the Republic of Kazakhstan from the Supreme Court of the Republic of Kazakhstan

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