Commentary to article 60. Sentencing based on the totality of sentences of the Criminal Code of the Republic of Kazakhstan of the Criminal Code of the Republic of Kazakhstan

     1. If the convicted person has committed a new crime after the sentencing, but before the full serving of the sentence, the court shall fully or partially attach the part of the sentence not served under the previous court verdict to the one imposed by the last court verdict.      

2. The final punishment based on the totality of sentences, if it is not related to deprivation of liberty, may not exceed the maximum term or amount provided for this type of punishment by the General Part of this Code.      

3. The final penalty for a combination of sentences in the form of imprisonment may not exceed twenty-five years. If the aggregate of sentences includes a sentence by which a person is found guilty of committing at least one crime specified in part four of Article 58 of this Code, the final penalty for the aggregate of sentences in the form of imprisonment may not exceed thirty years.      

4. The final punishment based on the totality of sentences must be greater than both the punishment imposed for the newly committed crime and the unserved part of the punishment under the previous court verdict.      

5. The addition of additional types of punishments when imposing punishments based on the totality of sentences shall be carried out according to the rules provided for in Article 58 of this Code.      

Unlike the totality of crimes, when all crimes were committed before the first sentence was pronounced, the totality of sentences, in accordance with art. 60 of the Criminal Code of the Republic of Kazakhstan, occurs if a person commits a new crime after the sentence is pronounced, but before the sentence is fully served.      

Thus, the signs of the totality of sentences are:      

- the existence of a sentence according to which a person has been sentenced;      

- this sentence has not yet been fully served by the convict;      

- a new crime was committed after the sentencing, but before the sentence was fully served.      

When imposing punishments based on a set of sentences, courts must establish and indicate in the verdict, according to the Resolution of the Plenum of the Supreme Court of the Republic of Kazakhstan dated April 30, 1999 "On the observance by courts of legality in the imposition of criminal punishment" "the type and amount of the unserved part of the punishment under the previous sentence, which, on the basis of art. 60 of the Criminal Code, is subject to full or partial addition to the punishment, appointed by the new verdict. The unserved part of the punishment under the previous sentence is considered to be: in case of suspended sentence, as well as in case of postponement of execution of serving the sentence on the grounds provided for in Article 72 of the Criminal Code, Part 2 of Article 74 of the Criminal Code, or in accordance with the procedure provided for in Article 452 of the Criminal Procedure Code, in case of application of Part 3 of Article 73 of the Criminal Code - the entire term of punishment, except for the period of detention in connection with detention, with the choice of a preventive measure in the form of arrest or execution of punishment, or being in a medical institution in connection with the use of compulsory medical measures;

in case of conditional early release from punishment on the grounds provided for in Article 70 of the Criminal Code

- the part of the sentence from which the convicted person was actually released on parole; upon conviction to restriction of liberty, as well as to perform community service

- part of the mandatory period of work and the time during which the convict evades work."      

When imposing a sentence based on the totality of sentences by partially attaching the unserved part of the sentence under the previous sentence, if the final punishment is not imposed within the maximum period established for this type of punishment, the court must state the reasons for the decision in the verdict. In case of partial addition of the unserved part of the punishment under the previous sentence, the final punishment must be greater in size than both the punishment imposed for the newly committed crime, and the unserved part of the punishment for the newly committed crime, and the unserved part of the punishment under the previous sentence.      

In the case of a combination of sentences, a new crime is committed after the person has been convicted of an earlier crime. This circumstance indicates an increased public danger of the perpetrator, which entails the definition by law of stricter rules for sentencing.      

When imposing punishments based on the totality of sentences, only the principle of partial or complete addition of punishments is applied. Another distinctive feature of the totality of sentences is that if the totality of crimes can partially or completely add up the entire punishment imposed for individual crimes, then with the totality of sentences, the unserved part of the punishment imposed by the previous sentence is partially or completely added to the punishment imposed by the last sentence.      

The limits of the addition of punishment for a given set (sentences) depend on whether or not the final punishment is related to imprisonment. If it is not related to deprivation of liberty, it may not exceed the maximum term or amount provided for this type of punishment by the General Part of the Criminal Code.      

The final penalty for a combination of sentences in the form of imprisonment may not exceed 25 years. If the aggregate of sentences includes a sentence by which a person is found guilty of committing at least one crime specified in Part 4 of Article 58 of the Criminal Code (a particularly serious crime punishable by imprisonment for up to 20 years or the death penalty, or life imprisonment), then the final punishment is based on the aggregate sentences of imprisonment may not exceed 30 years (Part 3 of Article 60 of the Criminal Code of the Republic of Kazakhstan).      

According to paragraph 12 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan "On certain issues of sentencing to imprisonment" dated October 19, 2001...if, according to a previous sentence, a person was conditionally sentenced to imprisonment, correctional labor, restriction of liberty or detention in a disciplinary military unit and during the probation period committed a new crime for which he is being given a real punishment, then full or partial addition of punishments based on the totality of sentences is possible only in cases where, in accordance with art. 64 of the Criminal Code suspended sentence for the first sentence was canceled.      

If the court, when considering a case of a negligent offense or an intentional minor offense, comes to the conclusion that it is possible to maintain a suspended sentence under the previous sentence, the punishment is imposed only for a new crime.      

In cases where a person is found guilty of a crime committed before the first sentence was passed, by which he was sentenced on probation, and when there are no grounds for revoking the suspended sentence, or when punishments imposed for several sentences cannot be imposed in accordance with Article 61 of the Criminal Code, courts should indicate in the verdict the execution of the punishment for each sentence independently.".      

In accordance with the explanations contained in paragraph 11 of the Regulatory Resolution  The Supreme Court of the Republic of Kazakhstan "On certain issues of sentencing to imprisonment" dated October 19, 2001. The court has the right to add any of the additional punishments imposed for crimes forming a set to a definitively defined basic 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