On judicial practice on the application of Article 6 of the Criminal Code of the Republic of Kazakhstan

Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated December 22, 2016 No. 15.

     In order to ensure correct and uniform judicial practice on the application of Article 6 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code), the plenary session of the Supreme Court of the Republic of Kazakhstan

    Decides:

The retroactive force of the criminal law established by Article 6 of the Criminal Code is based on the requirements of subparagraph 5) of paragraph 3 of Article 77 of the Constitution of the Republic of Kazakhstan (hereinafter referred to as the Constitution), as well as article 15 of the International Covenant on Civil and Political Rights (New York, December 16, 1966, ratified by the Law of the Republic of Kazakhstan dated November 28, 2005 No. 91-III, entered into force for the Republic of Kazakhstan on April 24, 2006).

    According to the constitutional requirements, laws that establish or strengthen responsibility, impose new duties on citizens or worsen their situation are not retroactive. If, after the commission of an offence, the responsibility for it is abolished or mitigated by law, the new law applies.

When applying article 6 of the Criminal Code, courts should strictly observe the requirement that a law that eliminates the criminality or punishability of an act, mitigates liability or punishment, or otherwise improves the situation of a person who has committed a criminal offense is retroactive, that is, it applies to persons who committed the relevant act before the enactment of such a law, including for persons serving a sentence, as well as those who have served a sentence but have a criminal record. A law that establishes the criminality or punishability of an act, increases responsibility or punishment, or otherwise worsens the situation of the person who committed the act, has no retroactive effect.

A law eliminating criminality or punishability of an act is recognized as a law that excludes a separate act previously recognized as a criminal offense from criminal acts. This can happen by completely excluding one or another norm from the Criminal Code.

    Less strict is the law, which provides for a more lenient punishment, and if it is the same, the maximum term or the amount of the sanction is less. If the maximum amount of punishment is equal, the law whose minimum term or amount of punishment is more lenient or has an alternative sanction is considered more lenient.

    A law that softens the rules for sentencing, conditions for exemption from criminal liability or punishment, and reduces the time for repayment or removal of a criminal record is recognized as otherwise improving the situation of a person who has committed a criminal offense.

    Laws that mitigate liability or punishment include the norms of law that:

    the sanction of the criminal law norm has been changed towards mitigation;

    An alternative type of more lenient punishment has been introduced into the sanction of the article.;

    the additional punishment in the sanctions of the article is excluded.

If the new criminal law establishes the same sanction as the previous law and does not improve in any way the situation of the person who committed the criminal offense, then it has no retroactive effect and is not subject to application. In this case, the provision of article 5 of the Criminal Code applies, stating that the criminality and punishability of an act are determined by the law in force at the time of the commission of this act.

Decriminalization of an act can be carried out by making changes to the disposition of the norm of the criminal law, and partial decriminalization of an act – by including or excluding additional elements of a criminal offense already present in the disposition, as well as by making changes to the norms of the General Part of the Criminal Code.

    When a new criminal law eliminates the criminality of an act (decriminalization of a criminal offense), a person convicted of such an act is recognized as having no criminal record, and the fact of his conviction does not entail criminal consequences and is not taken into account when determining the frequency, recidivism, and sentencing.

The pre-trial investigation body and the courts of first instance, appeal and cassation instances directly apply the retroactive law in criminal cases pending before them. At the same time, if the new criminal law eliminates the criminality and punishability of an act, then in accordance with the requirements of paragraph 6 of the first part of Article 35 of the Criminal Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC), the case is subject to termination of proceedings on these grounds, regardless of the stage at which it is located.

     The effect of the criminal procedure law in time is regulated by article 5 of the CPC.

     The courts of the first, appellate and cassation instances may adjust previous sentences against persons subject to the conditions of Article 6 of the Criminal Code, if these sentences have not been reviewed in the order of execution (Article 476 of the CPC).

The indication that a law improving the situation of a person brought to criminal responsibility is more lenient also applies to the norms on the recognition of recidivism, mitigating and aggravating criminal liability or punishment circumstances, the statute of limitations of criminal prosecution, parole, repayment and removal of criminal record, and so on.

In the case of sentencing a person brought to criminal responsibility within the upper limits of the sanction of the norm of the Special Part of the Criminal Code and the reduction of this upper limit by the new law, the rules provided for in Article 6 of the Criminal Code shall apply.

    If an act committed by a person has passed into the category of a more serious criminal offense or has otherwise worsened the situation of the person who committed the criminal offense, the new criminal law is not retroactive.

Courts should keep in mind that when applying the rules on the retroactive effect of a criminal law, it is not allowed to selectively apply norms that improve the situation of a person brought to criminal responsibility, both the new and the old criminal law, but only the norm that will entail favorable legal consequences for him.

In cases where the criminal law has been changed several times between the day of the commission of a criminal offense and the day of the sentencing or judicial act of the appellate court, the criminal law that is most favorable for the person brought to criminal responsibility, including the interim law, is applied.

If, at the time of the entry into force of the new criminal law, there is a court verdict that has entered into force, then the retroactive effect of the criminal law is carried out in accordance with the provisions of paragraph 15 of Article 476 of the CPC in the execution of the sentence. At the same time, issues of termination of the case, release from punishment or commutation of punishment, modification of the qualification of the act committed by the convicted person, reduction of the sentence and recidivism of crimes are considered. These issues, according to part one of Article 477 and part three of Article 478 of the CPC, are resolved by the district and equivalent court at the place of execution of the sentence, with the exception of the case provided for in part 3-1 of Article 478 of the CPC, and in its absence by a higher court at the request of the convicted person or on the recommendation of the institution or body executing the sentence.

    The footnote. Paragraph 11 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 11.12.2020 No. 6 (effective from the date of the first official publication).

When considering issues related to the execution of a sentence, the court has the right to apply the retroactive force of the criminal law by changing the qualification of a person's actions in accordance with the article of the new criminal law to a less serious criminal offense and reducing the punishment within the limits of the sanction of this article, not applying additional punishment.

     At the same time, the court has no right to review a court verdict regarding the assessment of evidence, the resolution of a civil claim in criminal proceedings and other issues not provided for in Article 476 of the CPC.

    The footnote. Paragraph 12 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 11.12.2020 No. 6 (effective from the date of the first official publication).

The courts, when applying the second part of Article 55 of the Criminal Code at the stage of execution of the sentence, in cases where the sentence imposes punishment on convicted persons with reference to mitigating or aggravating circumstances not recognized by the court as such, or when the sentence does not specify consideration of mitigating circumstances, although their presence in the case is obvious, should keep in mind the following:

     if the verdict does not indicate the existence of circumstances in the case mitigating or aggravating criminal liability and punishment, or that a particular circumstance specified in articles 53, 54 of the Criminal Code is taken into account by the court when imposing punishment, the court has no right to recognize and indicate the existence of such circumstances.;

    if, in sentencing the convicted person, the court did not recognize the existence of circumstances mitigating criminal liability and punishment, but actually took these circumstances into account by listing them, then the court, in the order of execution of the sentence, has the right to conclude that there are such circumstances in the case.

The second and fourth parts of Article 58 of the Criminal Code provide for the imposition of final punishment only by absorbing a less severe punishment with a more severe one. In the case of a combination of minor and moderate criminal offenses, as well as if the combination of criminal offenses includes at least one particularly serious crime and a criminal offense for which a fine is imposed.

    In this regard, if, before the introduction of this rule, a person was convicted of a combination of minor or moderate criminal offenses, as well as for a particularly serious crime and a criminal offense for which a fine was imposed, and the punishment was imposed by adding them partially or completely, then the court should determine the punishment in the order of execution of the sentence. by absorbing a less severe punishment with a more severe one.

The third part of Article 58 of the Criminal Code provides for an additional rule for the imposition of punishment for a combination of criminal offenses by absorbing a less severe punishment with a more severe one.

    In this regard, if, prior to the enactment of the new criminal law, a person was convicted of a combination of crimes, including at least one grave or especially grave crime, and the punishment was imposed by adding them partially or completely, the court may not apply the rule of absorption of a less severe punishment by a more severe and reduce the punishment of the convicted person.

When a person is convicted of criminal offenses that, prior to the enactment of the law, were classified as grave and especially grave, and the punishment was imposed on him according to the totality of crimes by partial or complete addition of punishments, the court, in the order of execution of the sentence, applies the rules for absorbing a less severe punishment with a more severe one, if these acts are classified by law as criminal offenses or as minor or moderate criminal offenses.

If the decision to impose a certain term of punishment in a sentence is motivated by the presence of the circumstances specified in the second part of Article 59 of the Criminal Code (as amended in 1997), then the court, when excluding the application of this norm from the sentence, should discuss the issue of reducing the sentence or mitigating the punishment, taking into account the circumstances of the case established by the court. At the same time, at the stage of execution of the sentence, a new assessment of the circumstances of the case established by this court verdict is unacceptable, as well as a reference only to the fact that the punishment was imposed within the limits of the sanction of the article.

When considering a petition for the execution of a sentence in respect of persons serving sentences in correctional colonies of strict or special regime for committing a grave or especially grave crime, respectively, in case of recidivism or dangerous recidivism of crimes, and those newly convicted of crimes of small and medium gravity, the corresponding recidivism of crimes should be excluded from the last sentence in accordance with Article 14 of the Criminal Code..

     Such persons should be kept in a strict or special regime penal colony, since the term of imprisonment and the type of correctional colony should be determined on the basis of articles 46 and 60 of the Criminal Code.

The retroactive rule of the new, more lenient criminal law also applies to persons who have been convicted and are serving a sentence or who have served a sentence but have a criminal record under a more stringent law that has become invalid.

    Courts should keep in mind the following when applying the rules on the retroactive effect of criminal law in relation to persons who have served their sentences:

    if a new criminal law mitigates responsibility, eliminates criminality or punishability of an act (decriminalization), but the punishment for this criminal offense has already been served or executed and the application of the new law will not entail legal consequences for the convicted person, then the new law should not be applied. In such cases, applications should be refused.;

    if a person has already served his sentence and the criminal record has not been repaid, and the application of the new law will entail legal consequences for the convicted person, such as reducing the repayment period of the criminal record, excluding recidivism, the new criminal law is subject to application.

    The petition of persons who have already served a criminal sentence is considered by the court that passed the sentence.

     The decision to refuse to satisfy the submission of the institution or body executing the punishment or the petition of the convicted person for release from punishment or for mitigation of punishment as a result of the issuance of a retroactive criminal law, or to leave such a petition or submission without consideration, may be reviewed in accordance with the procedure established by Chapter 49 of the CPC.

    The footnote. Paragraph 19 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 11.12.2020 No. 6 (effective from the date of the first official publication).

In the case of a repeated appeal from the institution or body executing the punishment, with a representation or a convicted person with a request for release from punishment or for mitigation of punishment as a result of the issuance of a criminal law having retroactive effect, when, on the recommendation of the institution or body executing the punishment, or at the request of the convicted person, previously stated on the same grounds, the court has already issued a decision on If they are refused, such a submission or petition must be returned without consideration.

    If the specified circumstance is established during the court's consideration of the submission of the institution or body executing the punishment, or the petition of the convicted person, the proceedings on such petition or submission are subject to termination. However, this does not prevent the filing of a second submission or petition on other grounds.

In cases where the case is considered in cassation on other grounds provided for by the CPC, the application of Article 6 of the Criminal Code is carried out by this court.

     If the cassation petition (protest) contains only arguments on the application of Article 6 of the Criminal Code, that is, the petition (protest) does not meet the requirements established by the first part of Article 488 of the CPC, then this petition (protest) in accordance with the requirements of paragraph 1 of the first part of Article 489 of the CPC is returned by the judge without consideration. At the same time, the author of the appeal should be clarified that regarding the application of Article 6 of the Criminal Code, he should apply to the court at the place of execution of the sentence in accordance with the procedure provided for in articles 476, 477 of the CPC.

To invalidate the normative resolution of the Supreme Court of the Republic of Kazakhstan dated October 28, 2005 No. 7 "On certain issues of application by courts of the Law of the Republic of Kazakhstan dated December 21, 2002 "On Amendments and Additions to the Criminal, Criminal Procedure and Penal Enforcement Codes of the Republic of Kazakhstan".

According to article 4 of the Constitution, this normative resolution is included in the current law, is generally binding and comes into force from the day of the first official publication.

Chairman

The Supreme Court

Republic of Kazakhstan

Judge

The Supreme Court

Republic of Kazakhstan,

Secretary of the plenary session

K. MAMIE

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