Commentary to article 59. Sentencing in case of recidivism of the Criminal Code of the Republic of Kazakhstan of the Criminal Code of the Republic of Kazakhstan
1. When prescribing punishment in case of recidivism, dangerous recidivism or especially dangerous recidivism of crimes, the number, nature and degree of public danger of previously committed crimes, the circumstances due to which the corrective effect of the previous punishment was insufficient, as well as the nature and degree of public danger of newly committed crimes are taken into account.
2. The term and amount of punishment in case of recidivism of crimes may not be less than one third of the maximum term and amount of the most severe type of punishment provided for the committed crime, in case of dangerous recidivism of crimes - not less than two thirds, and in case of especially dangerous recidivism of crimes - not less than three quarters of the maximum term and amount of the most severe punishment provided for a perfect crime.
3. If the article (part of the article) The special part of this Code contains an indication of the criminal record of the person who committed the crime as a qualifying feature, and in the presence of exceptional circumstances provided for in Article 55 of this Code, punishment for recidivism, dangerous recidivism or especially dangerous recidivism of crimes is imposed without regard to the rules provided for in the second part of this Article.
The norm establishing the general principles of sentencing in case of recidivism has been introduced into the criminal legislation of the Republic of Kazakhstan for the first time.
In article 13 of the Criminal Code, the legislator defines three types of recidivism: recidivism, dangerous recidivism and especially dangerous recidivism.
The rules for sentencing in case of recidivism are not specifically defined in Article 13 of the Criminal Code of the Republic of Kazakhstan, it only states: "Recidivism of crimes entails a more severe punishment on the basis and within the limits provided for by this Code" (Part 5 of Article 13 of the Criminal Code of the Republic of Kazakhstan). Article 59 of the Criminal Code establishes and discloses these grounds and limits.
59 of the Criminal Code of the Republic of Kazakhstan provides a list of circumstances that are taken into account when imposing punishment for recidivism: "the number, nature and degree of public danger of previously committed crimes; circumstances due to which the corrective effect of the previous punishment was insufficient, as well as the nature and degree of public danger of newly committed crimes."
These requirements of the law make it possible to individualize the punishment, taking into account all information about the crime committed and the identity of the perpetrator. The Criminal Code of the Republic of Kazakhstan has defined the limits that the court must comply with when imposing punishment for each type of recidivism. At the same time, the more dangerous the recidivism, the higher the minimum term of punishment imposed on the person. Thus, the term and amount of punishment for the recurrence of crimes may not be less than one third of the maximum term and amount of the most severe type of punishment provided for the committed crime.; in case of a dangerous recidivism of crimes - at least two thirds, and in case of a particularly dangerous recidivism of crimes - at least three quarters of the maximum term and amount of the most severe type of punishment provided for the committed crime (part 2 of art. 59 of the Criminal Code of the Republic of Kazakhstan).
At the same time, the Supreme Court of the Republic of Kazakhstan, in paragraph 8 of the Regulatory Resolution "On certain issues of sentencing to imprisonment" dated October 19, 2001, clarified that when imposing punishment for recidivism, courts are required to take into account the requirements of Article 59 of the Criminal Code, which sets only minimum limits on the terms and amounts of punishments for recidivism. In case of recidivism, the amount of punishment for an unfinished crime is determined in accordance with art. 56 of the Criminal Code (sentencing for an unfinished crime) without taking into account the requirements of Part 2 of Article 59 of the Criminal Code of the Republic of Kazakhstan.
Based on the number of previous convictions, the nature and degree of public danger of both previously committed and newly committed crimes, as well as taking into account circumstances mitigating criminal liability and punishment, which together can be considered exceptional, the court has the right, applying art. 55 of the Criminal Code, to impose punishment without taking into account the requirements of Part 2 of art. 59 of the Criminal Code. At the same time, punishment using Article 55 of the Criminal Code may be imposed both below the limits established by Part 2 of Article 59 of the Criminal Code, and below the minimum limits specified in the article according to which the crime is qualified.
The rules for sentencing in case of recidivism in accordance with Part 2 of Article 59 of the Criminal Code do not apply in cases where the person's previous criminal record, indicated in the article of the Special Part of the Criminal Code as a qualifying feature of the crime and the actions of the perpetrator are qualified on this basis. This is due to the fact that in such cases, the presence of recidivism has already been taken into account when constructing the sanction of the criminal law norm and its repeated consideration when imposing punishment is not required (Part 3 of Article 59 of the Criminal Code). For example, a person with a criminal record for hooliganism commits hooliganism again, provided for in paragraph "b" of Part 2 of Article 257 of the Criminal Code of the Republic of Kazakhstan.
Without taking into account the requirements provided for in Part 2 of Article 59 of the Criminal Code, punishment is also imposed for relapse, dangerous relapse or especially dangerous relapse of crimes, if there are exceptional circumstances provided for in Article 55 of the Criminal Code (Part 3 of Article 59 of the Criminal Code).
If a person's previous criminal record gives grounds to classify his actions on the qualifying basis of committing a crime repeatedly and constitutes a recidivism of crimes, then punishment is imposed using Part 2 of Article 59 of the Criminal Code.
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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