Commentary to article 58. The appointment of punishment for a set of crimes The Criminal Code of the Republic of Kazakhstan of the Criminal Code of the Republic of Kazakhstan

     1. In the case of a combination of crimes, the court, having imposed the punishment (main and additional) for each crime separately, determines the final punishment by absorbing the less severe punishment with a more severe one or by adding the prescribed punishments in full or in part.      

2. If the totality of crimes includes only crimes of minor and moderate severity, then the final punishment is imposed by absorbing the less severe punishment with a more severe one.      

3. If the totality of crimes includes grave or especially grave crimes, then the final punishment is imposed by absorbing a less severe punishment with a more severe one, or by partially or completely adding punishments. In this case, the final penalty in the form of imprisonment may not exceed twenty years.      

4. If the totality of crimes includes at least one particularly serious crime, for the commission of which this Code provides for punishment in the form of imprisonment for a term of up to twenty years or the death penalty, or life imprisonment, the final punishment is imposed by partial or total addition of punishments. In this case, the final penalty in the form of imprisonment may not exceed twenty-five years.      

5. Additional punishments imposed for crimes forming an aggregate may be added to the main punishment imposed for crimes forming an aggregate. The final additional punishment in case of partial or complete addition may not exceed the maximum term or amount established for this type of punishment by the General Part of this Code.      

6. According to the same rules, punishment is imposed if, after the court has pronounced a verdict in the case, it is established that the convicted person is also guilty of another crime committed by him before the verdict in the first case. In this case, the sentence served under the first court verdict is counted in the final term of punishment.       The purpose of punishment for a set of crimes has its own characteristics.      

In accordance with paragraph 11 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan "On certain issues of sentencing to imprisonment" dated October 19, 2001: "In the case of a combination of crimes, the main and additional penalties should be imposed for each crime separately, then, in accordance with Article 58 of the Criminal Code, the final punishment should be imposed."      

Thus, the imposition of punishment for a combination of crimes involves two stages.:      

1) the imposition of punishment separately for each of the crimes included in the aggregate;      

2) the appointment of the final punishment for the totality of crimes.      

The specified procedure for sentencing allows, in cases of review of a sentence in a cassation or supervisory instance, if there are grounds to commute the punishment for a particular crime or exclude it from the sentence altogether. This is also important when conducting an amnesty or pardon for an individual crime.      

If the aggregate includes only minor and moderate crimes, then the final punishment is imposed by absorbing a less severe punishment with a more severe one (Part 2 of Article 58) of the Criminal Code of the Republic of Kazakhstan.      

If the totality of crimes includes grave or especially grave crimes, then the final punishment is imposed by absorbing a less severe punishment with a more severe one, or by partially or completely adding punishments. At the same time, the final punishment in the form of imprisonment may not exceed 20 years (Part 3 of Article 58 of the Criminal Code of the Republic of Kazakhstan).       A different procedure is established if the totality of crimes includes at least one particularly serious crime, for which the penalty is imprisonment for up to twenty years or the death penalty or life imprisonment. In this case, the final punishment is imposed by partial or total addition of the punishment and may not exceed twenty-five years in prison (Part 4 of Article 58 of the Criminal Code).      

The Supreme Court of the Republic of Kazakhstan, in the resolution of the Plenum "On the observance by courts of legality in the imposition of criminal punishment" dated April 30, 1999, stated: "When imposing punishment for a combination of crimes, courts should take into account that the principles provided for by law of absorption of less severe punishment by more severe punishment or full or partial addition of punishments should be motivated in the verdict. When imposing a penalty for a combination of three or more crimes, the court has the right to apply both principles simultaneously, applying the principle of absorbing one less severe punishment by another more severe punishment imposed for minor crimes, and then applying the principle of partial or complete addition of this punishment with punishments imposed for crimes of moderate severity, grave or especially grave, included in the the totality.      

When applying the principle of absorbing one less severe punishment by another more severe punishment, courts should keep in mind that the severity of punishments is determined by the sequence in which they are specified in article 39 of the Criminal Code. When assigning the same type of punishment for each crime included in the totality, the most severe of them is considered to be the punishment, the term or amount of which is greater. If penalties of the same type and size are imposed for crimes included in the aggregate, the determination of the final punishment for others is permissible only in cases where they are imposed within the maximum limits of sanctions of the relevant articles of the criminal law."      

According to paragraph 23 of 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: "The court may add additional punishments to the main punishment, forming a set. The final additional punishment in case of partial or complete addition may not exceed the maximum term or amount established for this type of punishment by the General Part of the Criminal Code. If the additional punishments are heterogeneous, then each of them is added to the main punishment, imposed collectively, and executed independently (Part 5 of Article 58 of the Criminal Code)."      

According to the same rules, punishment is imposed if, after the court's verdict in the case, it is established that the convicted person is also guilty of another crime committed by him before the verdict in the first case. In this case, the sentence served under the first court verdict is counted in the final term of punishment (Part 6 of Article 58 of the Criminal Code).      

The final punishment for the totality of crimes cannot be lower than the punishment imposed by the first sentence, since in such cases, when absorbing or adding punishments, the court must proceed from the size of the entire punishment under the first sentence, and not from its unserved part.

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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