Commentary to article 54. Circumstances aggravating criminal liability and punishment The Criminal Code of the Republic of Kazakhstan of the Criminal Code of the Republic of Kazakhstan

     1. Circumstances aggravating criminal liability and punishment are recognized as:      

a) repetition of crimes, recidivism of crimes;      

b) infliction of grave consequences by a crime;      

c) the commission of a crime as part of a group of persons, a group of persons by prior agreement, an organized group or a criminal community (criminal organization);      

d) a particularly active role in the commission of a crime;      

e) involvement in the commission of a crime of persons who obviously suffer from a severe mental disorder for the perpetrator, or persons who have not reached the age from which criminal responsibility begins;      

f) the commission of a crime motivated by national, racial and religious hatred or enmity, out of revenge for the lawful actions of others, as well as in order to conceal another crime or facilitate its commission;      

g) the commission of a crime against a woman who is obviously pregnant for the perpetrator, as well as against a minor, another defenseless or helpless person, or a person who is dependent on the perpetrator.;      

h) the commission of a crime against a person or his relatives in connection with the fulfillment by this person of his official, professional or public duty;      

i) the commission of a crime with special cruelty, sadism, bullying, as well as torment for the victim; k) the commission of a crime using weapons, ammunition, explosives, explosive or imitating devices, specially manufactured technical means, flammable and flammable liquids, toxic and radioactive substances, medicinal and other chemical and pharmacological drugs, as well as using physical or mental coercion or in a generally dangerous way;      

k) committing a crime using the conditions of a state of emergency, natural disaster or other public disaster, as well as during mass riots;      

m) committing a crime under the influence of alcohol, drugs or substance abuse. The court has the right, depending on the nature of the crime, not to recognize this circumstance as aggravating.;      

h) the commission of a crime by a person who has thereby violated his oath or professional oath;      

o) committing a crime using the trust placed in the perpetrator by virtue of his official position or contract;      

p) committing a crime using the uniform or documents of a government official.      

2. If the circumstance specified in the first part of this Article is provided for by the relevant article of the Special Part of this Code as a sign of a crime, it may not be taken into account again as a circumstance aggravating responsibility and punishment.      

3. When imposing a punishment, the court may not recognize as aggravating circumstances not specified in the first part of this Article.      

The presence of circumstances provided for in Article 54 of the Criminal Code of the Republic of Kazakhstan indicates an increased public danger of the crime committed and the identity of the person who committed it, which allows the court to apply a more severe type and amount of punishment within the sanction of the article that qualifies the deed. Thus, unlike the previous norm, this article specifies conditions that aggravate the situation of the perpetrator when committing a crime. These include:      

a) repetition of crimes, recidivism of crimes.       The commission of crimes more than once testifies to the stability of the criminal's antisocial views and his increased social danger.      

The repetition of crimes consists in the commission of two or more acts provided for in the same article or part of the article of the Special Part of the Criminal Code (Part 1 of Article 11 of the Criminal Code).      

Recidivism poses an increased public danger to society. Among them, the law calls recidivism simple, dangerous and especially dangerous (art. 13 of the Criminal Code of the Republic of Kazakhstan).      

Recidivism is the commission of an intentional crime by a person who has a criminal record for a previously committed intentional crime. Criminal records for crimes committed under the age of 18, as well as criminal records that have been removed and expunged, are not taken into account when recognizing a recidivism. Recidivism of crimes entails a more severe punishment on the basis and within the limits provided for by the Criminal Code.      

The commission of a crime by a person who has previously committed a crime cannot be considered as a circumstance aggravating responsibility and punishment if the statute of limitations for criminal liability has expired in relation to the first crime, a criminal record has been removed or extinguished in accordance with the procedure established by law, or the law has eliminated the criminal liability of an act committed in the past, as well as in cases where when a person has been released from criminal liability and punishment on the grounds provided for in the General Part of the Criminal Code (Articles 65, 66, 67, 68 of the Criminal Code).      

b) infliction of grave consequences by a crime.      

The severity of the consequences significantly affects the assessment of the degree of public danger of an act: the more severe the consequences, the more dangerous the committed act is for society.      

A consequence can be considered grave both in the case when it is covered by the elements of a crime, and in the case when it goes beyond this composition.      

If the consequence is part of a crime, it is recognized as grave only in cases where its actual size significantly exceeds the minimum amount of damage necessary and sufficient to qualify the act under this article of the Special Part of the criminal law.      

Not only the consequences caused by a criminal act can be recognized as grave consequences, but also more distant ones, if, of course, they are causally related to his actions. For example, the death of a newborn left without food and supervision should be considered as a grave consequence when the perpetrator is convicted of murdering the mother of a newborn child (Article 97 of the Criminal Code of the Republic of Kazakhstan).      

c) the commission of a crime as part of a group of persons, a group of persons by prior agreement, an organized group or a criminal community.      

Punishment for members of criminal groups is individualized in accordance with their criminal role, degree of participation in the group, community. The organizers, managers, as well as members of organized groups and criminal communities (criminal organizations) should bear the strictest responsibility.      

The organizers and leaders who created or led an organized group or criminal community (criminal organization) are subject to criminal liability for their organization and leadership in the cases provided for in the articles of the Special Part, as well as for crimes committed by an organized group or criminal community, if they were covered by their intent. Other members of an organized group or criminal community are criminally liable for participating in them in cases provided for in articles of the Special Part, as well as for crimes in the preparation or commission of which they participated (Part 5 of art. 31 of the Criminal Code).      

d) a particularly active role in the commission of a crime.      

This aggravating circumstance can only occur in cases where the crime was committed in complicity. The degree of activity of an accomplice (performer, accomplice) is determined on a case-by-case basis, taking into account all the circumstances of the case. However, the law does not name an active role at all, but a particularly active role in the commission of a crime.       e) the involvement in the commission of a crime of persons who, for the perpetrator, obviously suffer from a severe mental disorder or persons who have not reached the age from which criminal responsibility begins.      

This aggravating circumstance is due to the fact that the perpetrator knowingly, intentionally draws into the commission of crimes those persons who, due to a severe mental disorder or who have not reached the age from which criminal responsibility begins, cannot understand the nature and significance of the actions being committed, which serves as a factor that increases public danger and affects punishment.      

The Criminal Code considers persons who have committed a crime by using other persons who are not criminally liable due to age or insanity as perpetrators of the crime (Part 2 of Article 28 of the Criminal Code). f) committing a crime motivated by national, racial and religious hatred or enmity, out of revenge for the lawful actions of others, as well as for the purpose of conceal another crime or ensure its commission.       The Constitution of the Republic of Kazakhstan in Articles 5 and art. Article 14 guarantees citizens equality of rights and freedoms, regardless of race and nationality, and prohibits any form of discrimination against citizens on this basis. The Criminal Code contains an independent corpus delicti providing for liability for violation of equal rights of citizens (Article 141 of the Criminal Code of the Republic of Kazakhstan).      

The commission of other crimes motivated by national, racial, and religious hatred or enmity is considered an aggravating circumstance. For example, hooliganism, insulting and slandering against representatives of another nationality, race, etc.      

An aggravating circumstance is the commission of a crime as retribution for any lawful actions of others.      

The commission of a crime in order to conceal another crime or facilitate its commission indicates an increased danger of a person, since such actions, on the one hand, make it difficult to solve the crime, detect the perpetrator, and, on the other, ensure its commission.      

g) the commission of a crime against a woman who is obviously pregnant for the perpetrator, as well as against a minor, another defenseless or helpless person, or a person who is dependent on the perpetrator.      

Increased responsibility in the presence of such cases is explained by the fact that the subject is aware that such persons are unable to properly resist his actions or do not understand their socially dangerous significance, and therefore it is easier for him to commit a crime, it is easier to achieve the desired result, which should be reflected in the definition of punishment.      

The law recognizes as aggravating criminal liability the commission of a crime against a woman who is obviously pregnant for the perpetrator.  The personality of a pregnant woman, due to her position as a person preparing to give birth to another person, requires special care for her health, for the physical and mental well-being of the offspring. And if a person, knowing her situation reliably, commits a crime against her, then this increases the danger of such a person.      

Minors should be considered persons under the age of 14, in particular, those who are physically unable to resist a criminal.      

Not only a seriously ill person can be in a helpless state, but also any other person who, due to objective or subjective circumstances (disability, sleep, intoxication, etc.), cannot provide physical or mental resistance to the criminal.      

h) the commission of a crime against a person or his relatives in connection with the fulfillment by this person of his official, professional or public duty.      

The commission of a crime for the aforementioned motive indicates its increased danger and the identity of the perpetrator, since in this way the subject opposes normal official, social, professional activities, seeks to terminate or change it in his interests. There will be no aggravating circumstance if the crime is committed not in connection with the performance of official, professional or public duty, but on the basis of personal hostility: revenge, jealousy, etc.      

The performance of an official or professional duty should be understood as the activity of a person within the scope of his official or professional duties, and the performance of a public duty should be understood as the exercise by any citizens of both specially assigned public duties and the commission of any other actions in the interests of society or individuals (suppression of an offense, notification to authorities of what has been committed or is being prepared crime, etc.).      

i) the commission of a crime with special cruelty, sadism, bullying, as well as torment for the victim.       Most often, cruelty can be used in relation to crimes against the person (murder, injury to health), as well as crimes related to encroachment on a person, for example, abuse of power or official authority (Part 3 of Article 308 of the Criminal Code of the Republic of Kazakhstan).      

A crime is considered to have been committed with particular cruelty in cases where the perpetrator causes severe and prolonged physical suffering and torment to his victim (many painful wounds are inflicted during his lifetime), as well as in other circumstances (killing parents in front of children or children in front of parents, mocking a corpse, etc.).       Sadism is a perverted and sophisticated cruelty.      

Bullying of the victim is evident when the actions of the perpetrator are committed in a crude, cynical manner and are specifically aimed at humiliating human dignity and causing physical and moral suffering to the victim. Bullying is possible not only in relation to crimes against the person, but also in other crimes (property crimes, crimes against constitutional and other human and civil rights and freedoms). But it is possible only in intentional crimes.      

j) the commission of a crime involving the use of weapons, ammunition, explosives, explosive or imitating devices, specially manufactured technical means, flammable and combustible liquids, toxic and radioactive substances, medicinal and other chemical and pharmacological preparations, as well as using physical or mental coercion or a generally dangerous method.      

This paragraph contains several aggravating circumstances: the use of explosives or devices imitating them in the commission of a crime, drugs that, due to their inherent properties, endanger the safety of life, human health, cause them, property, etc. severe consequences. This increases the public danger of the crime and the person who committed it, causing a more severe punishment.       The use of physical or mental violence in the commission of a crime facilitates the commission of a crime, as well as increases the danger of the subject. Committing a crime in a socially dangerous way, i.e. using such methods of committing a crime that are capable of causing significant damage to an indefinite number of people and property (explosion, arson, poisoning, shooting in crowded places, etc.)      

k) the commission of a crime using the conditions of a state of emergency, natural disaster or other public disaster, as well as during mass riots.      

A state of emergency is a special legal situation in a country that is imposed for a certain period of time due to exceptional circumstances and allows for the use of special measures to maintain order. Committing a crime in these conditions is a gross violation of the rule of law, increases the public danger of the subject of the crime.      

Judicial practice and the science of criminal law consider fire, flood, hurricane, tornado, epidemic, earthquake, etc. as a public disaster. events that put the lives and health of many people in great danger and can cause major property damage.      

The law considers mass riots as an independent high-risk crime (Article 241 of the Criminal Code of the Republic of Kazakhstan). The commission of other crimes during mass riots is considered an aggravating circumstance.      

m) committing a crime under the influence of alcohol, drugs or substance abuse. The court has the right, depending on the nature of the crime, not to recognize this circumstance as aggravating responsibility.      

The commission of a crime in a state of physical intoxication caused by the ingestion of alcoholic beverages, narcotic drugs and other intoxicants is often the cause of the commission of a crime and is regarded as a circumstance indicating an increased degree of public danger to the committed crime and the person who committed it.      

However, in accordance with paragraph "m" of Part 1 of Article 54 of the Criminal Code, the court has the right, depending on the nature of the crime, not to recognize the commission of a crime in a state of intoxication as an aggravating circumstance and punishment. When resolving this issue, courts should take into account, as noted in the resolution of the Plenum of the Supreme Court of the Republic of Kazakhstan dated 30.04.1999 "On the observance by courts of legality in the imposition of criminal punishment", whether the criminal act was by its nature related to intoxication of the perpetrator, as well as the conditions under which the person appeared in such a state. In particular, the state of intoxication of a minor at the time of the commission of a crime cannot be considered as aggravating responsibility and punishment if it is associated with the involvement of his adult accomplice in the use of alcoholic beverages, narcotic drugs or other intoxicating substances.       h) the commission of a crime by a person who has thereby violated his oath or professional oath.      

Persons who commit crimes in violation of their oath or professional oath violate not only criminal law, but also other acts that impose certain duties on them, which should be taken into account when imposing punishment.      

o) the commission of a crime using the trust placed in the perpetrator by virtue of his official position or contract.       The perpetrator uses the trust placed in him by virtue of his official position or contract and commits a crime by deceiving the victim.      

This category includes not only officials, but also other persons who use their position against the interests of the service and use deception to achieve their criminal goals.      

p) committing a crime using the uniform or documents of a government official.       Representatives of government authorities are endowed with certain powers that the perpetrator uses when committing a crime. Such use of authority is reasonably recognized as an aggravating circumstance, since the presence of these powers facilitates the commission of a crime and undermines the authority of the authorities. In this case, criminal liability increases regardless of whether the offender had the uniforms or documents of a government official on a legitimate or illegal basis. (The concept of a representative of authority is given in the note to Article 320 of the Criminal Code).      

When establishing circumstances that aggravate responsibility and punishment, the circumstances already indicated as qualifying signs of specific crimes cannot be additionally taken into account. For example, when committing a murder with extreme cruelty, the actions of the perpetrator are qualified under paragraph "d" of Part 2 of Article 96 of the Criminal Code of the Republic of Kazakhstan. The aggravating circumstance - special cruelty - specified in paragraph "i" of Part 1 of Article 54 of the Criminal Code of the Republic of Kazakhstan is not taken into account by the court when imposing punishment, since it has already been taken into account by the legislator. In this regard, in the resolution of the Plenum of April 30, 1999 "On the observance by courts of legality in the imposition of criminal punishment" it is noted that in cases where a particular circumstance provided for in Article 53 or Article 54 of the Criminal Code 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 circumstances of responsibility and punishment.      

Persons who commit crimes in violation of their oath or professional oath violate not only criminal law, but also other acts that impose certain duties on them, which should be taken into account when imposing punishment.      

o) committing a crime using the trust placed in the perpetrator by virtue of his official position or contract.       The perpetrator uses the trust placed in him by virtue of his official position or contract and commits a crime by deceiving the victim.      

This category includes not only officials, but also other persons who use their position against the interests of the service and use deception to achieve their criminal goals.      

p) committing a crime using the uniform or documents of a government official.       Representatives of government authorities are endowed with certain powers that the perpetrator uses when committing a crime. Such use of authority is reasonably recognized as an aggravating circumstance, since the presence of these powers facilitates the commission of a crime and undermines the authority of the authorities. In this case, criminal liability increases regardless of whether the offender had the uniforms or documents of a government official on a legitimate or illegal basis. (The concept of a representative of authority is given in the note to art. 320 of the Criminal Code).      

When establishing circumstances that aggravate responsibility and punishment, the circumstances already indicated as qualifying signs of specific crimes cannot be additionally taken into account. For example, when committing a murder with extreme cruelty, the actions of the perpetrator are qualified under paragraph "d" of Part 2 of Article 96 of the Criminal Code of the Republic of Kazakhstan. The aggravating circumstance - special cruelty - specified in paragraph "i" of Part 1 of Article 54 of the Criminal Code of the Republic of Kazakhstan is not taken into account by the court when imposing punishment, since it has already been taken into account by the legislator. In this regard, in the resolution of the Plenum of April 30, 1999 "On the observance by courts of legality in the imposition of criminal punishment" it is noted that in cases where a particular circumstance provided for in Article 53 or Article 54 of the Criminal Code 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 circumstances of responsibility and punishment.      

Unlike mitigating circumstances, aggravating circumstances are not subject to extensive interpretation by the court - their list is limited and exhaustive, and therefore, as emphasized in the Plenum's decision of April 30, 1999. "On the observance by courts of legality in the imposition of criminal punishment", other circumstances established by the court in which the crime was committed, or characterizing the defendant (alcohol abuse, violation of rules of conduct in society, poor attitude towards family, work, studies, etc.), may be taken into account when imposing punishment, but may not be recognized as aggravating responsibility and punishment.)

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