Imposing a Sentence on a Person Found Guilty of a Criminal Offense

🔷 Article 52 of the Criminal Code of the Republic of Kazakhstan: General Principles of Sentencing

🟩 1. General Overview

Article 52 of the Criminal Code of the Republic of Kazakhstan sets out the fundamental principles that the court must follow when sentencing a person found guilty of committing a criminal offense.

This article implements the principle of individualized sentencing, enshrined in Article 39 of the Criminal Code, and specifies how the court should assess factual and legal circumstances in order to impose a fair, necessary, and sufficient sentence.

🟦 2. Key Provisions and Analysis

📌 Part 1: Fairness and Legality

"A fair sentence shall be imposed within the limits established by the relevant article of the Special Part..."

🔹 Principle of legality: the court may not exceed the minimum or maximum limits established by the applicable article of the Criminal Code. Exceptions include cases of multiple offenses (Article 58) or multiple sentences (Article 60).

🔹 Fairness requires the sentence to be proportionate to the circumstances of the case. It is a constitutional principle also reflected in international instruments, such as Article 10 of the International Covenant on Civil and Political Rights (humane treatment of persons deprived of liberty).

📌 Part 2: Necessity and Sufficiency

"...a sentence must be imposed that is necessary and sufficient for the correction of the offender and prevention of new criminal offenses..."

🔹 This represents the principle of expediency: the punishment must serve its purpose and not be excessive or formalistic.

🔹 A less severe punishment should be applied first, and only if it is ineffective may a harsher one (such as imprisonment) be imposed.

🔹 For example, in theft cases (Article 188 of the Criminal Code), the court may impose a fine, restriction of liberty, or community service — if the person has no prior convictions, has compensated the damage, and has shown remorse.

📌 Part 3: Individualization

"The nature and degree of public danger of the offense, as well as the personality of the offender, shall be taken into account..."

🔹 The court is required to comprehensively evaluate a range of factors, including:

·        severity of the act;·        intent (deliberate or negligent);·        motives;·        behavior before and after the offense;·        voluntary compensation of damage;·        family situation and dependents;·        employment and lifestyle.

🔹 Mitigating (Article 53) and aggravating (Article 54) circumstances must be fully and objectively identified and considered. Failure to do so may result in the sentence being overturned (paragraph 3 of the Normative Resolution of the Supreme Court of the RK No. 5 dated 11.07.2003 "On Sentencing").

🟨 3. Judicial Practice

📍 Example 1: In a fraud case (Article 190 of the Criminal Code), the trial court imposed imprisonment despite the defendant’s admission of guilt, compensation of damages, and positive character references. The appellate court found the sentence excessively harsh and replaced it with a restriction of liberty.

📍 Example 2: In a hooliganism case (Article 293 of the Criminal Code), the court took into account recidivism and intoxication and imposed real imprisonment, citing the ineffectiveness of non-custodial measures.

🟪 4. Related Provisions

🌐 5. International Standards

·        Article 6 of the European Convention on Human Rights – right to a fair trial;·        Constitution of the RK, Article 4 – international treaties take precedence over domestic laws;·        UN Tokyo Rules (1990) – promote minimal use of imprisonment and favor alternative sanctions.

🔹 6. Conclusion

Article 52 of the Criminal Code is one of the core provisions of criminal policy. It aims to strike a balance between the necessity of punishment and humane treatment, encouraging courts to individualize sentences and reduce excessive repression, provided that this does not conflict with public interests.

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