On some issues of criminal punishment Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated June 25, 2015 No. 4.

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On some issues of criminal punishment

Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated June 25, 2015 No. 4.

In order to ensure the correct and uniform application of the norms of the current criminal and criminal procedure legislation of the Republic of Kazakhstan governing the imposition of punishment, the plenary session of the Supreme Court of the Republic of Kazakhstan

Decides:

Based on the provisions of the Constitution of the Republic of Kazakhstan on the equality of all before the law and the court, and taking into account that no one can be found guilty of committing a criminal offense and subjected to criminal punishment except by a court verdict that has entered into force, to draw the attention of the courts to the fact that every criminal case, regardless of the nature and severity of the criminal offense committed Offenses related to the defendant's official and social status must be resolved in strict accordance with the law. When imposing criminal punishment, courts should strictly observe the general rules for sentencing specified in article 52 of the Criminal Code of the Republic of Kazakhstan (hereinafter – Criminal Code), as well as take into account the category of severity of the criminal offense, the presence of recidivism and its type, the stage of commission of the criminal offense, the degree of participation of the defendant in the commission of the criminal offense, the importance of his actions to achieve the purpose of the criminal offense and the impact on the nature and extent of the harm caused or possible, whether there is a combination of criminal offenses, the presence of mitigating and aggravating responsibility and punishment of the circumstances, the grounds for imposing a more lenient punishment than is provided for this criminal offense.

To draw the attention of the courts to the need for mandatory discussion and application of strict penalties provided for by law to persons found guilty of committing criminal offenses as part of criminal groups, corruption, terrorist, extremist crimes, as well as crimes against the sexual integrity of minors and previously convicted persons who do not wish to embark on the path of correction.

When determining the degree of public danger of a committed criminal offense, courts should take into account its severity, provided for in Article 11 of the Criminal Code, and the totality of the circumstances in which it was committed (the method of commission, the form of guilt, motives and goals, the stage of completion of the act, the degree of public danger of the consequences, etc.).

Courts should comprehensively, fully and objectively examine the data on the defendant's identity, bearing in mind their significant impact on determining the type and amount of punishment. In particular, it is necessary to clarify the state of health, ability to work, attitude to work, education, information about the criminal record and marital status of the defendant. In accordance with the third part of Article 52 of the Criminal Code, courts must take into account the impact of the imposed punishment on the living conditions of the defendant's family and dependents when imposing punishment.

The list of circumstances aggravating responsibility and punishment specified in the first part of Article 54 of the Criminal Code is exhaustive, and therefore other circumstances established by the court in which a criminal offense was committed or characterizing the defendant (alcohol abuse, violation of rules of conduct in a public place, attitude to family, work, study, etc.) may be taken into account. when sentencing, but circumstances cannot be recognized as aggravating responsibility and punishment.

In accordance with paragraph 12) of the first part of Article 54 of the Criminal Code, the court has the right, depending on the nature of the criminal offense, not to recognize the commission of a crime in a state of intoxication as an aggravating circumstance and punishment. When deciding this issue, the courts must take into account whether the commission of a criminal act was by its nature related to the intoxication of the perpetrator, as well as the conditions under which the person appeared in such a state. In particular, the state of intoxication of a minor at the time of the commission of a criminal offense cannot be considered as aggravating responsibility and punishment if it is associated with the involvement of his adult accomplice in the use of alcoholic beverages, narcotic drugs or other intoxicating substances.

In cases where the circumstance provided for in Article 53 or Article 54 of the Criminal Code is indicated in the disposition of the article of the Special Part of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Special Part of the Criminal Code) as one of the qualifying signs of a crime, it cannot be recognized by the court as mitigating or aggravating responsibility and punishment for the commission of this criminal offense. Also, a particularly active role in the commission of a criminal offense cannot be recognized as an aggravating circumstance if the person is recognized as the organizer of the act.

The limits of the trial are limited by the charge brought, which is formulated during the preparation of the indictment, the protocol of the accelerated pre-trial investigation, and the protocol of the prosecution. Circumstances mitigating and aggravating responsibility and punishment are included in the content of the charge (paragraph 4 of the third part of Article 299 of the Criminal Procedure Code of the Republic of Kazakhstan (hereinafter – CPC)). Consequently, based on the requirements of article 340 of the CPC, the court's finding of aggravating circumstances in the verdict that are not specified in the indictment worsens the defendant's situation and is a violation of the limits of the trial. At the same time, the resolution of the issue of recognition of mitigating circumstances is not limited to the prosecution and should be based on the factual circumstances of the case established in the main trial.

In accordance with the second part of Article 17 of the Criminal Code, a mental disorder that does not exclude sanity must be taken into account by the court when imposing punishment as a circumstance mitigating criminal liability and punishment.

The presence of minor children may not be recognized in accordance with paragraph 4) The first part of Article 53 of the Criminal Code is a circumstance mitigating the criminal liability and punishment of the perpetrator if the act committed by him was directed against his own young children or if the young children are not dependent on the defendant or if he is deprived of parental rights.

During the main trial, the prosecutor has the right, in compliance with the rules of part five of Article 340 of the CPC, by drawing up a new indictment, the protocol of the accelerated pre-trial investigation, and the protocol of the prosecution, to supplement the charge with an indication of the existence of circumstances aggravating criminal liability and punishment of the defendant.

The footnote. Paragraph 4, as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 22.12.2017 No. 13 (effective from the date of the first official publication); dated 11.12.2020 No. 6 (effective from the date of the first official publication); dated 08.12.2021 No. 3 (effective from the date of the first official publication); dated 22.12.2022 No. 10 (effective from the date of the first official publication).

When imposing punishment, the court must necessarily indicate in the verdict for each defendant the circumstances mitigating and aggravating his responsibility and punishment.

The presence of repeated criminal offenses as circumstances aggravating criminal liability and punishment provided for in paragraph 1) The first part of Article 54 of the Criminal Code is determined in accordance with the concept of repetition fixed in the first part of Article 12 of the Criminal Code.

A person found guilty by a court verdict of committing two or more crimes (if they are repeated or actually combined) cannot be recognized as the person who committed the crime for the first time.

The footnote. Paragraph 5 was amended in Kazakh, the text in Russian is not changed by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 22.12.2017 No. 13 (effective from the date of the first official publication); 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).

If the sanction of the article of the Criminal Code under which the person is found guilty provides for alternative types of punishments, the courts should discuss the possibility of imposing a less severe one, bearing in mind that, in accordance with the second part of Article 52 of the Criminal Code, a more severe type of punishment is imposed only if a less severe type of punishment cannot achieve the purposes of punishment. The court's decision must be motivated in the verdict.

If, in accordance with the provisions of the General Part of the Criminal Code, a person cannot be sentenced to any of the penalties provided for in the relevant article of the Special Part of the Criminal Code, the court, without reference to the fourth part of Article 55 of the Criminal Code, assigns him a milder type of punishment provided for in articles 40 or 81 of the Criminal Code. The justification for the decision taken by the court should be set out in the reasoning part of the verdict, setting out the relevant norm of the General Part of the Criminal Code, which prohibits the use of a particular type of punishment. The application of a prohibited punishment to a person is not allowed even if the issue of commuting the sentence imposed by a court verdict is resolved while evading its serving.

The footnote. Paragraph 6, as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 11.12.2020 No. 6 (effective from the date of the first official publication); dated 08.12.2021 No. 3 (effective from the date of the first official publication).

Part two and part three of Article 55 of the Criminal Code are independent grounds for mitigation of punishment and their simultaneous application is unacceptable. In the case of competition of these legal norms, the third part of Article 55 of the Criminal Code is applied when imposing punishment. In this case, the rules of the second part of Article 55 of the Criminal Code are not taken into account.

In accordance with article 55 of the Criminal Code, the imposition of a penalty below the lower limit established by the relevant article for the commission of a criminal offense, or the imposition of a milder type of punishment not provided for in the sanction of the Criminal Code article under which the criminal offense is qualified, or the non-application of additional punishment provided for as mandatory, is allowed only if exceptional circumstances are established that significantly reduce the degree of public danger of a criminal offense, and also with the active assistance of an accomplice in a group crime to the disclosure of crimes committed by a group of persons.

Exceptional circumstances may be recognized as individual mitigating circumstances, as well as their totality, and other circumstances related to both the committed act and the defendant's personality, which indicate a lesser degree of public danger of the committed act and a positive socio-moral image of the defendant.

In the verdict against each defendant, the court is obliged to indicate which circumstances, established in the case, it recognizes as exceptional and, in combination with which data on the identity of the perpetrator, it takes as a basis for the application of Article 55 of the Criminal Code.

In itself, the commission of a grave or especially grave crime in the presence of exceptional circumstances is not an obstacle to assigning a person a punishment below the lowest limit.

The application of the rules of part four of Article 55 of the Criminal Code in the execution of a sentence, including when replacing an unpaid fine with imprisonment, is unacceptable.

The courts should keep in mind that when imposing a sentence of imprisonment with a certain period of time, for a particularly serious crime, if the sanction of the article provides for life imprisonment along with the punishment of imprisonment, the rules of paragraph 3) of the second part of Article 55 of the Criminal Code are subject to application. These rules do not apply if, when sentencing, the court concludes that it is necessary to impose a sentence of life imprisonment on the defendant.

In any case, the amount of punishment determined by the court using article 55 of the Criminal Code may not be lower than the minimum limit established by law for this type of punishment.

In the presence of the circumstances specified in the second or third parts of Article 55 of the Criminal Code, the penalty may be imposed below the lowest limit provided for by the sanction of the relevant article of the Special part of the Criminal Code. In cases of sentencing for preparing to commit a crime or attempting to commit a crime, the limits specified in parts two and three of Article 55 of the Criminal Code are determined taking into account the provisions of Article 56 of the Criminal Code. When imposing a fine, correctional labor, community service, or restriction of liberty on a minor under the rules of articles 55 and 56 of the Criminal Code, the courts should proceed from the provisions of article 81 of the Criminal Code on the maximum and minimum limits of the term or amount of the appropriate type of punishment.

When imposing punishment in a case considered in conciliation proceedings, the court has the right to impose a less severe punishment (type, term, amount) than specified in the procedural agreement, but it does not have the right to impose a more severe punishment.

The footnote. Paragraph 7, as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 22.12.2017 No. 13 (effective from the date of the first official publication); dated 11.12.2020 No. 6 (effective from the date of the first official publication); dated 08.12.2021 No. 3 (effective from the date of the first official publication); dated 22.12.2022 No. 10 (effective from the date of the first official publication).

When sentencing persons who have committed a criminal offense under the age of eighteen, women, and men aged sixty-three and over, courts must take into account the exceptions provided for in articles 46 and 56 of the Criminal Code regarding terms of imprisonment. Women, regardless of the age at which they committed the crime, are not sentenced to life imprisonment.

The footnote. Paragraph 8 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 12/22/2022 No. 10 (effective from the date of the first official publication).

When discussing the issue of sentencing minors, courts should take into account that only those types of criminal punishment specified in article 81 of the Criminal Code can be applied to them, the terms and amounts of which cannot exceed the limits established by this article. In this case, the circumstances specified in articles 82 and 83 of the Criminal Code should be additionally taken into account, and the possibility of applying coercive educational measures to the minor should be discussed on a case-by-case basis, taking into account the circumstances of the case and the personality of the minor.

When sentencing minors to imprisonment, the term of imprisonment for both one criminal offense and their combination, as well as for a combination of sentences, may not exceed ten years. Imprisonment for more than the specified period may be imposed on minors only for murder committed under aggravating circumstances, or an act of terrorism, or for a combination of criminal offenses, one of which is murder under aggravating circumstances, or an act of terrorism. In this case, the term of imprisonment imposed based on the totality of crimes and the totality of sentences may not exceed twelve years.

If a minor is sentenced to imprisonment, subject to the rules provided for in parts two and three of Article 56 of the Criminal Code, then half or three quarters of the term or amount of the most severe type of punishment should be calculated from ten or twelve years of imprisonment, respectively, which may be imposed on a minor for a completed criminal offense. Similar rules on calculating the terms of punishment for a minor should be taken into account when imposing punishment according to the requirements of part two or three of Article 55 of the Criminal Code.

The footnote. Paragraph 9 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 22.12.2017 No. 13 (effective from the date of the first official publication).

9-1. According to the rules of the third part of Article 62 of the Criminal Code, only the time of a person's detention before the verdict enters into force in a criminal case is counted in the term of criminal punishment, including the time of a person's detention on suspicion of committing a criminal offense in accordance with Article 131 of the CPC. The time spent by a person in custody after the entry into force of the sentence (in connection with the detention of a wanted convict and his transfer, commutation of punishment, etc.) is subject to offset in the term of criminal punishment without applying the rules of the third part of Article 62 of the Criminal Code.

When a person is sentenced to probation with the application of Article 63 of the Criminal Code, the time of his detention, house arrest until the sentence enters into force, is counted in the term of serving the sentence according to the rules of parts three and four of Article 62 of the Criminal Code, taking into account the type of institution of the penal system in which he was to serve his sentence, subject to his conviction to actual imprisonment.

The footnote. The regulatory resolution was supplemented by paragraph 9-1 in accordance with 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); as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 08.12.2021 No. 3 (effective from the date of the first official publication).

In case of a suspended sentence, the court explains to the convicted person and his legal representatives about the possible consequences for him in case of non-fulfillment of duties assigned by the court, commission of administrative or criminal offenses.

If a person to whom conditional early release has been applied commits, with the exception of the cases specified in paragraph 2) of the seventh part of Article 72 of the Criminal Code, a new intentional crime during the remaining unserved part of the sentence, the court, without canceling the conditional early release, appoints punishment for him according to the totality of sentences.

When imposing a sentence based on a set of sentences, when a suspended sentence was imposed on the first sentence, the court must set off in the final term of the sentence based on a set of sentences the time the person was in custody, house arrest as a measure of restraint and detention, if applied, in both the first and second cases, which should be indicated. in the operative part of the guilty verdict.

The footnote. Paragraph 10 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 08.12.2021 No. 3 (effective from the date of the first official publication).

10-1. Within the meaning of article 44 of the Criminal Code, the punishment in the form of restriction of freedom consists in the establishment and implementation of probation control. In this regard, the term of probation control must coincide with the term of the imposed punishment.

Article 44 of the Criminal Code also sets the time limit for forced labor at one hundred hours per year. An increase or decrease in this period is unacceptable.

If the restriction of liberty is imposed for a period of less than one year or an incomplete number of years, the time of forced labor is calculated in proportion to the term of punishment in relation to the annual period of labor (one hundred hours).

The footnote. The regulatory resolution was supplemented by paragraph 10-1, in accordance with the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 08.12.2021 No. 3 (effective from the date of the first official publication).

With regard to persons who have committed a criminal offense or who have committed a crime for the first time, courts should discuss the possibility of correcting them without applying criminal penalties and, if there are grounds specified in articles 65, 66, 67, 68, 69, 70 of the Criminal Code, release such persons from criminal liability and punishment. The court's conclusion on the possibility of correcting a person without applying criminal penalties should be based on a comprehensive, complete and objective study of the circumstances of the case and data on the identity of the defendant.

The footnote. Paragraph 11 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 22.12.2017 No. 13 (effective from the date of the first official publication).

Courts should keep in mind that, in accordance with part three of Article 14 of the Criminal Code, when recognizing recidivism and dangerous recidivism, criminal records that have been removed and expunged, as well as criminal records for crimes committed by a person under the age of 18, are not taken into account. Along with this, when recognizing a dangerous recidivism on the basis of the second part of Article 14 of the Criminal Code, those outstanding or outstanding criminal records that are related to the conviction of a person for serious or especially serious crimes are taken into account.

When setting the number of previous convictions, courts should keep in mind that convictions for crimes committed before sentencing in the first case, with the determination of the final punishment for a combination of crimes based on part six of Article 58 of the Criminal Code, are counted as one criminal record.

Courts must take into account the conditions specified in the law for the repayment of criminal records. A person released from punishment by a court verdict (resolution), regardless of the length of his stay in custody in connection with the choice of a preventive measure in the form of detention, is considered, in accordance with the second part of Article 79 of the Criminal Code, to have no criminal record from the moment the judicial act on the basis of which he was released from punishment entered into force.

At the same time, if a person is released only from the main, but not from additional punishment, the commission of this crime interrupts the course of the term expunging the previous criminal record. The term of repayment of a criminal record is calculated anew after serving an additional sentence for the last crime. The commission of a crime, the criminal prosecution of which has been terminated on the basis of an amnesty act, does not interrupt the repayment period of the previous criminal record.

When determining a recidivism or dangerous recidivism of a crime, a person who has previously been sentenced to imprisonment should be considered a person who, in the past, by a court verdict that entered into force, was sentenced to imprisonment for committing a serious or especially serious crime, which was to be served in a correctional institution, including when the person did not serve this sentence. (for example, he evaded serving his sentence, was released from serving his sentence on the basis of Article 75 of the Criminal Code).

When recognizing a recidivism, a person's previous unreturned and outstanding criminal record for committing serious and especially serious crimes should be taken into account even in the case when the imprisonment was imposed conditionally (using Article 63 of the Criminal Code) or with the application of a suspended sentence (Articles 74 and 76 of the Criminal Code), and this person committed a new crime during probation control or during the period of postponement of execution of the sentence, either the suspended sentence or the suspended execution of the sentence were canceled and the person was sent to an appropriate institution to serve the sentence of imprisonment imposed by the court.

At the same time, persons released from serving their sentence in accordance with Article 77 of the Criminal Code due to the expiration of the statute of limitations of the conviction; those sentenced on probation (Article 63 of the Criminal Code) after the expiration of probation control, those convicted with the use of deferred execution of the sentence (Article 74 of the Criminal Code) – after the expiration of the deferral period, if the person was released from serving the sentence; or released from punishment due to a combination of difficult circumstances (part one of Article 76 of the Criminal Code), previously sentenced to imprisonment are not considered.

Persons who have been sentenced to imprisonment (fine, community service, correctional labor, restriction of liberty) on the grounds provided for in the General Part of the Criminal Code for these types of punishments have been commuted to imprisonment may not be recognized as sentenced to imprisonment.

Conviction of a person for committing a criminal offense does not entail a criminal record, and convictions for minor and moderate crimes are not taken into account when determining recidivism.

In case of relapse and dangerous relapse, punishment is imposed taking into account the provisions of paragraph 1) of the first part of Article 54 and Article 59 of the Criminal Code. The court may recognize, on the basis of paragraph 1) of the first part of Article 54 of the Criminal Code, the presence of a relapse or a dangerous relapse as a circumstance aggravating criminal liability and punishment only if this is indicated in the indictment.

The footnote. Paragraph 12, as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 22.12.2017 No. 13 (effective from the date of the first official publication); dated 11.12.2020 No. 6 (effective from the date of the first official publication); dated 08.12.2021 No. 3 (effective from the date of the first official publication).

The commission of a crime in a group, in a group of persons by prior agreement and in a criminal group entails a more severe punishment, therefore, courts should correctly determine the type of complicity, the accomplices of the crime and the role of each of them.

When imposing punishments for a set of criminal offenses, courts should take into account that the principles stipulated by law of absorbing a less severe punishment with a more severe punishment or of adding punishments in whole or in part should be motivated in the verdict.

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 in the order in which they are specified in article 40 of the Criminal Code. When assigning the same type of punishment for each criminal offense included in the aggregate, 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 criminal offenses included in the aggregate, the determination of the final punishment by absorbing one punishment by another is permissible only in cases where they are imposed within the maximum limits of the sanctions of the relevant articles of the criminal law.

In the case of a combination of criminal offenses, the main and additional punishments should be imposed for each criminal offense separately, and the additional punishment should also be imposed in accordance with part three of Article 50 of the Criminal Code, and then the final punishment should be imposed in accordance with article 58 of the Criminal Code. When fully added up, the terms and amounts of punishments are summed up in accordance with the requirements of article 61 of the Criminal Code. In case of partial addition of punishments, a part of the less severe punishment is added to the most severe one. The terms and amounts of the cumulative punishment may not exceed the limits established by Article 58 of the Criminal Code. If different types of additional punishment are imposed for criminal offenses forming a set, then they must be indicated in the verdict and when the final punishment is imposed, along with the appropriate amounts and terms.

When deciding on the application of the principle of addition or absorption of punishment, the courts, when choosing one of these principles, should take into account in each specific case the nature, degree of public danger and circumstances of criminal offenses committed, information about the identity of the perpetrator and other facts affecting the imposition of punishment.

The footnote. Paragraph 14 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 should take into account that when imposing penalties based on a set of sentences based on part six of Article 58 of the Criminal Code, the final penalty for a set of criminal offenses cannot be lower than the penalty imposed by the first sentence, since in such cases, when absorbing or adding punishments, it is necessary to proceed from the size of the entire punishment imposed by the first sentence, and not from its the unserved part.

If, after sentencing, it is established that the convicted person is also guilty of committing other criminal offenses, some of which were committed before and others after sentencing, the punishment for the second sentence is determined using both articles 58 and 60 of the Criminal Code: first, the punishment is determined based on the totality of crimes committed before the first sentence, Then the rules of the sixth part of Article 58 of the Criminal Code are applied, after which the punishment for the totality of crimes is determined., The crimes committed after the first verdict and the final punishment are determined by the totality of the sentences.

When a person is convicted of a criminal offense committed before the previous sentence was passed, the entire sentence served under the previous sentence is offset. The term of serving a sentence imposed on the basis of part six of Articles 58 and 60 of the Criminal Code is calculated from the date of the last sentence, taking into account the time in custody until the trial in the last case as a measure of restraint or detention.

In the case of the imposition of punishment in the form of restriction of liberty for an unfinished crime and its replacement in the case of malicious evasion from serving a sentence by imprisonment, the term and amount of this punishment should not exceed the limits established in Article 56 of the Criminal Code.

When imposing punishment based on the totality of sentences, only the principle of addition is applied, while the punishment in its size must be greater than both the punishment imposed by the last sentence and the unserved part of the punishment by the previous sentence.

If a person has committed a new criminal offense after the sentencing, but before its entry into force, the court, in accordance with the rules of part six of Article 58 of the Criminal Code, appoints punishment for a combination of criminal offenses.

The footnote. Paragraph 15 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 imposing a sentence based on a set of sentences, the courts must establish and indicate in the verdict the type and amount of the unserved part of the punishment under the previous sentence, since on the basis of article 60 of the Criminal Code this punishment is subject to full or partial addition to the punishment imposed under the new sentence.

The unserved part of the punishment under the previous sentence should be considered:

in case of suspended sentence, as well as in case of postponement of execution of serving a sentence on the grounds provided for in Article 74 and part two of Article 76 of the Criminal Code, or in accordance with the procedure provided for in Article 475 of the CPC or in the application of part three of Article 75 of the Criminal Code, the entire term of punishment, except for the period of detention in connection with detention or with the choice of a measure preventive measures in the form of arrest, house arrest, or execution of punishment, or the person's stay 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 72 of the Criminal Code, the part of the sentence from which the convicted person was actually released on parole.;

if convicted to restriction of liberty, community service, correctional labor, or a fine, if no preventive measure was chosen for the newly committed crime or a preventive measure unrelated to restriction of liberty was chosen, the unserved punishment is determined as of the day of sentencing. In the case of full serving of the sentence under the previous sentence, the rules of Article 60 of the Criminal Code do not apply. When choosing a preventive measure in the form of detention or house arrest for a newly committed crime, the remaining period at the time of choosing the preventive measure should be considered the unserved part of the punishment.

When imposing punishments based on the totality of sentences, courts must take into account the rules for adding punishments provided for in article 61 of the Criminal Code.

If a person was sentenced to probation under a previous sentence and committed a new criminal offense during the probation period, for which he is sentenced to imprisonment, then full or partial addition of punishments based on the totality of sentences is possible only in cases where, in accordance with article 64 of the Criminal Code, the suspended sentence under the first sentence is canceled.

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 in the absence of grounds for revoking the suspended sentence, or when punishments imposed for several sentences are not subject to addition, in accordance with article 61 of the Criminal Code, the sentence must indicate the execution of the punishment for each sentence independently.

In the case of a new crime committed by a person serving a custodial sentence, the unserved part of the punishment should be considered the term remaining at the time of choosing a preventive measure in the form of detention for a newly committed crime. If the specified preventive measure has not been chosen, the unserved part of the punishment is the term remaining by the time of the last verdict.

The footnote. Paragraph 16, as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 22.12.2017 No. 13 (effective from the date of the first official publication); dated 11.12.2020 No. 6 (effective from the date of the first official publication); dated 08.12.2021 No. 3 (effective from the date of the first official publication).

16-1. The provisions of the first part of Article 65 of the Criminal Code apply to a person who has committed a criminal offense or has committed a crime for the first time, as a rule, in the combination of the following circumstances: the presence of his confession, issued in accordance with Article 182 of the CPC; facilitating the disclosure and investigation of a criminal offense; making amends for the damage caused by a criminal offense.

The persons listed in the second part of Article 65 of the Criminal Code cannot be released from criminal liability in connection with active repentance.

At the stage of pre-trial proceedings, the provision of the first part of Article 65 of the Criminal Code cannot be applied to a person who has committed a corruption crime.

The footnote. The regulatory resolution was supplemented by paragraph 16-1 in accordance with 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 case of total or partial addition of punishments for a set of criminal offenses or for a set of sentences, courts should follow the procedure for determining the terms of punishment when adding them up, established by Article 61 of the Criminal Code. Within the meaning of this article, the additional punishment not served under the previous sentence is fully or partially added to the final basic punishment or fully or partially combined with the additional punishment of the same type imposed under the new sentence within the time limit established for this type of additional punishment. The punishments specified in the second part of Article 61 of the Criminal Code are carried out independently.

If different types of basic punishments are imposed by the court for crimes included in the totality of criminal offenses or in the totality of sentences, then with their full or partial addition, the final punishment should be imposed based on its stricter type.

If a person sentenced to imprisonment or restriction of liberty for committing a crime has committed a criminal offense after sentencing but before serving his sentence, the rules of article 60 of the Criminal Code are not applicable. In such cases, the sentences must be executed independently.

If, according to the first sentence, a person is sentenced to imprisonment, correctional labor or other punishment to be executed, and a suspended sentence is imposed on the second sentence using article 63 of the Criminal Code, then in such cases, when adding up the punishments, the court must indicate in the verdict that they are to be executed independently.

When imposing penalties for a set of criminal offenses according to the rules of part six of Article 58 of the Criminal Code or for a set of sentences, the issue of applying an amnesty act to persons who committed criminal offenses before the adoption of the said act should be discussed. At the same time, it should be borne in mind that the provisions of the amnesty act do not apply to persons who have again committed intentional crimes after its application, if this is indicated in the act itself.

The footnote. Paragraph 17, as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 11.12.2020 No. 6 (effective from the date of the first official publication); dated 08.12.2021 No. 3 (effective from the date of the first official publication).

If the convicted person commits a new criminal offense during the period of postponement of the execution of the sentence under the previous sentence, the court, in accordance with article 60 of the Criminal Code, must add the unserved sentence under the previous sentence in full or in part to the punishment imposed for the new criminal offense. At the same time, it is not necessary to make a decision on the cancellation of the postponement of the execution of the sentence for the first sentence.

When a new crime is committed after the expiration of the suspended sentence and the entry into force of a court order to send a convicted person to an appropriate institution for serving his sentence in accordance with part three of Article 74 of the Criminal Code, the court, having determined the punishment for the new crime, is obliged to apply the rules for sentencing sentences provided for in Article 60 of the Criminal Code.

If by the time the verdict is passed in a new case after the expiration of the suspended sentence, the issue of releasing the convicted person from serving his sentence or sending him to serve his sentence in an appropriate institution has not been resolved by the court, the court shall impose punishment only for the newly committed crime. In such cases, the issue of execution of the sentence in the presence of other outstanding sentences may be resolved in accordance with the procedure provided for in articles 476, 477, 478 of the CPC.

The footnote. Paragraph 18 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 22.12.2017 No. 13 (effective from the date of the first official publication).

Additional punishments are imposed within the limits established by the article of the Criminal Code, according to which the defendant was found guilty. If additional punishment is applied on the basis of Articles 49 or 50 of the Criminal Code, its term may not exceed the limits established by law for this type of punishment.

When the sanction of a criminal law provides for the possibility of applying or not applying additional punishment, the courts are required to discuss the issue of its appointment and indicate in the verdict the reasons for the decision. The non-application of additional punishment in such cases is not indicated in the operative part of the sentence.

When a person is convicted under articles of the criminal law, according to which the imposition of additional punishment is mandatory, the court may not impose it only if the conditions provided for in article 55 of the Criminal Code are met, with mandatory reasons for the decision in the verdict.

These provisions do not apply to the imposition of additional punishment in the form of confiscation of property, the grounds and conditions of which are determined by the content of this punishment in accordance with the requirements of article 48 of the Criminal Code.

The footnote. Paragraph 19 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 22.12.2017 No. 13 (effective from the date of the first official publication).

Confiscation of property may be imposed only in cases where the sanction of the article of the Criminal Code under which the defendant is found guilty provides for it as an additional punishment. The property subject to confiscation must be clearly specified in the operative part of the sentence. Confiscation may be applied only to the property that was owned by the convicted person and (or) third parties, obtained by criminal means or acquired with funds obtained by criminal means, as well as to property that is an instrument or means of committing a criminal offense.

It should be noted that the attribution of property to objects of confiscation on the basis of the provisions of the third part of Article 113 of the CPC is a circumstance included in the subject of proof. In this regard, when deciding on the confiscation of property, including those registered to third parties, the courts must necessarily verify the evidence that substantiates the origin of this property and the funds with which it was acquired. If there is no information about the criminal nature of the origin of the property in the case or the property has not been established at all, confiscation of the property is not imposed, including under the articles of the Special Part of the Criminal Code, which provide for the mandatory imposition of this type of additional punishment. The application of Article 55 of the Criminal Code is not required in this case. In all cases, the court's decision to confiscate property must be motivated in the verdict with reference to the presence or absence of grounds provided for in article 48 of the Criminal Code.

In the cases provided for in the third part of Article 48 of the Criminal Code, the court must indicate in the verdict the amount of money to be confiscated, justifying the decision.

Confiscation may not be applied to the property specified in the fifth part of Article 48 of the Criminal Code, taking into account the legal restrictions established by this norm. In the event that the criminal nature of the origin of property that is not subject to confiscation according to the requirements of this norm is established, in accordance with the provisions of part three of Article 48 of the Criminal Code, its monetary value is to be recovered from the State income, with the justification of the decision in the verdict.

If the sanction of the article of the Special Part of the Criminal Code provides for the confiscation of property as a mandatory additional punishment, but the crime was committed by a person under the age of a minor, then taking into account the provisions of the General Part of the Criminal Code, additional punishment in the form of confiscation of property is not applied. Such a decision should be motivated in the descriptive and motivational part of the court's verdict with reference, respectively, to article 81 of the Criminal Code. References to article 55 of the Criminal Code are not required in these cases. If confiscation is not applied in these cases, the property of criminal origin found in convicts, recognized as material evidence, is subject to state revenue in accordance with the third part of Article 118 of the CPC when the court resolves the issue of the fate of the material evidence in the verdict. In the same manner, issues are resolved if the imposition of punishment in the form of confiscation of property is not provided for by the sanction of the article of the Special Part of the Criminal Code, however, during the proceedings, property related to the crime was identified on the grounds listed in parts one and two of Article 48 of the Criminal Code.

When deciding on material evidence, the court must determine their ownership, the owner's awareness of the use of his property for illegal purposes and, depending on the established, take one of the decisions specified in the third part of Article 118 of the CPC. If the owner of the property did not know and should not have known about the illegal use of his property by other persons, then it must be returned to him.

The footnote. Paragraph 20 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 22.12.2017 No. 13 (effective from the date of the first official publication); 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).

Deprivation of the right to hold certain positions or engage in certain activities, deprivation of a special, military or honorary title, class rank, diplomatic rank, qualification class and state awards may also be imposed as an additional punishment in cases where it is not provided for as punishment in the article of the Special Part of the Criminal Code, according to which a criminal offense is qualified. In this case, the decision to impose additional punishment in the operative part of the sentence must contain a reference to article 49 or article 50 of the Criminal Code, respectively.

When a person is convicted of committing an intentional criminal offense, simultaneously with sentencing, the court must discuss the issue of submitting, on the basis of part two of Article 49 of the Criminal Code, a submission to the President of the Republic of Kazakhstan on depriving the convicted person of state awards or special, military or honorary titles awarded by the President of the Republic of Kazakhstan, class rank, diplomatic rank, qualification class When a person is convicted of committing an intentional criminal offense, simultaneously with sentencing, the court must discuss the issue of submitting, on the basis of part two of Article 49 of the Criminal Code, a submission to the President of the Republic of Kazakhstan on depriving the convicted person of state awards or special, military or honorary titles awarded by the President of the Republic of Kazakhstan, class rank, diplomatic rank, qualification class. To determine whether an award is a state award, one should be guided by the Law of the Republic of Kazakhstan dated December 12, 1995 No. 2676 "On State Awards of the Republic of Kazakhstan".

When imposing this type of additional punishment, the court has the right to request the deprivation of one or more awards, titles, class rank, diplomatic rank or qualification class (for example, if the c When imposing this type of additional punishment, the court has the right to request the deprivation of one or more awards, titles, class rank, diplomatic rank or qualification class (for example, if the convicted person has a qualification class and state awards, the court has the right to raise the issue of depriving only the qualification class). The decision must be motivated in the verdict. This provision does not apply to cases of sentencing for corruption crimes, in which, based on the requirements of part two of Article 49 of the Criminal Code, the court must submit a submission tThis provision does not apply to cases of sentencing for corruption crimes, in which, based on the requirements of part two of Articl49 of the Criminal Code, the court must submit a submission to the President of the Republic of Kazakhstan on the deprivation of the convicted person of all available titles, classes, ranks, ranks listed in Article 49 of the Criminal Code, and state awards.

The footnote. Paragraph 21 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 22.12.2017 No. 13 (effective from the date of the first official publication).

In accordance with article 50 of the Criminal Code, in each case of a person committing a crime related to the performance of duties in a position or engaging in a certain activity, the court is obliged, taking into account the nature of the crime committed, to discuss the issue of depriving the defendant of the right to hold certain positions or engage in certain activities. In the operative part of the sentence, the position or type of activity must be specified specifically. In particular, it is unacceptable to deprive a convicted person of the right to work in a particular industry or in any institutions or organizations without defining the range of positions that he is not entitled to hold. The fact that by the time of sentencing, the defendant no longer held a position or was not engaged in activities related to the commission of the crime is not an obstacle to the application of the specified additional punishment. Based on the provisions of Article 50 of the Criminal Code, it is not allowed to impose deprivation of the right to hold certain positions and engage in certain activities simultaneously for the same crime.

When assigning this type of additional punishment, the court should take into account that its appointment is provided for life only for certain categories of crimes directly listed in the second part of Article 50 of the Criminal Code. For other criminal offenses not included in this list, life imprisonment for When assigning this type of additional punishment, the court should take into account that its appointment is provided for life only for certain categories of crimes directly listed in the second part of Article 50 of the Criminal Code. For other criminal offenses not included in this list, life imprisonment for the right to hold certain positions or engage in certain activities is not imposed, even if this type of additional punishment is provided for as mandatory in the sanction of the article of the Criminal Code. In such cases, the court must proceed from the general grounds and conditions for the imposition of this type of additional punishment, according to which it is imposed for a period of one to ten years. Persons who have committed a crime under the age of a minor will not be given life imprisonment for the right to hold certain positions or engage in certain activities.

If, for two or more criminal offenses included in the aggregate, along with the main punishment, an If, for two or more criminal offenses included in the aggregate, along with the main punishment, an additional punishment is imposed for a certain period in the form of deprivation of the right to hold certain positions or engage in certain activities, then its final term or amount, with partial or complete addition of punishments, may not exceed the maximum term or amount for this type of punishment provided for The total part of the Criminal Code, that is, ten years.

Deprivation of the right to drive vehicles may be imposed by a court as an additional punishment in accordance with the sanction of the criminal law, regardless of the fact that this person did not have this right or was deprived of it by way of an administrative penalty.

When imposing additional punishment for extremist crimes provided for in Article 50 of the Criminal Code, a specific type of activity must be specified, which the convicted person is deprived of the right to engage in (for example, activities related to the creation, membership, participation in the work of political parties, political public associations and movements).

When imposing penalties in the form of deprivation of the right to hold certain positions or engage in certain activities, courts should take into account the specifics provided for in the second part of Article 50 of the Criminal Code in relation to persons who have committed crimes in the field of economic activity and against the interests of service in financial organizations, sexual integrity of minors, corruption and transport crimes.

If the deprivation of the right to hold certain positions or engage in certain activities is not sanctioned by the relevant article of the Special Part of the Criminal Code, then the court, taking into account the nature and degree of public danger of the committed act and the identity of the perpetrator, should discuss the issue of assigning him such additional punishment according to the rules of the third part of Article 50 of the Criminal Code.

The footnote. Paragraph 22 as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 22.12.2017 No. 13 (effective from the date of the first official publication); dated 11.12.2020 No. 6 (effective from the date of the first official publication); dated 08.12.2021 No. 3 (effective from the date of the first official publication).

22-1. For a corruption offense committed before January 1, 2020, an additional penalty is imposed in the form of life imprisonment for the right to hold positions in the civil service, judges, local governments, the National Bank of the Republic of Kazakhstan and its departments, government organizations and organizations in whose authorized capital the state's share is more than fifty percent, including national management holdings, national holdings, national companies, national development institutions, of which the state is a shareholder, their subsidiaries, more than fifty percent of the voting shares (participation interests) of which belong to them, as well as in legal entities, more than fifty percent of the voting shares (participation interests) of which belong to these organizations.

For a corruption offense committed from January 1 to January 10, 2020, inclusive, an additional penalty is imposed in the form of life imprisonment for the right to hold positions in the civil service, judges, local governments, the National Bank of the Republic of Kazakhstan and its departments, the authorized body for regulation, control and supervision of the financial market and financial organizations, government organizations and organizations in whose authorized capital the state's share is more than fifty percent, including national management holdings., national holdings, national companies, national development institutions, of which the state is a shareholder, their subsidiaries, more than fifty percent of the voting shares (participation interests) of which belong to them, as well as legal entities, more than fifty percent of the voting shares (participation interests) of which belong to these subsidiaries.

For a corruption offense committed after January 10, 2020, an additional penalty is imposed in the form of life imprisonment for the right to hold positions in the civil service, judges, local governments, the National Bank of the Republic of Kazakhstan and its departments, the authorized body for regulation, control and supervision of the financial market and financial organizations, government organizations and quasi-public sector entities..

The footnote. The regulatory resolution was supplemented by paragraph 22-1 in accordance with 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 cases by courts considering complaints and petitions, protests against sentences, resolutions, it is necessary to check compliance with the general principles of sentencing when passing a sentence, the conformity of the chosen punishment with the severity of the criminal offense and the personality of the convicted person, the correctness of the application of the norms of criminal law when imposing punishment, as well as compliance with the norms of the criminal procedure law governing the procedure for pronouncing a sentence decisions on the measure of punishment and the specific circumstances of the case, which were taken into account. If errors and violations of the law are found by the courts of first instance in imposing punishment, higher courts must take measures provided for by law to eliminate them.

Recognizing the incorrect conclusions of the court about the scope of the charge, the form of guilt or the form of complicity of the convicted person in committing a criminal offense, the presence of aggravating circumstances and punishment, and making appropriate changes to the sentence in this regard (for example, excluding an episode of the charge or one or more aggravating circumstances, recognizing the person as an accomplice rather than a co-perpetrator of a criminal offense, considering his actions show signs of preparation for a criminal offense or an attempt on it, rather than a completed criminal offense), the courts, Those considering complaints and petitions, protests against sentences, and resolutions should discuss the possibility or necessity of reducing the sentence to the convicted person and provide the reasons for the decision in the resolution.

Without changing the qualification of the crime or the scope of the charge, a reduction or increase in the punishment imposed by the court of first instance within the scope of the sanction of the criminal law in accordance with article 438 of the CPC may take place only in cases where it is unfair in its type or size due to excessive severity or excessive leniency. At the same time, the grounds for commuting the sentence or releasing the convicted person from serving it should be only those circumstances that were established during the consideration of the case and indicate that an excessively harsh punishment was imposed on the convicted person when sentencing.

The footnote. Paragraph 23 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 22.12.2017 No. 13 (effective from the date of the first official publication).

When considering a case by higher courts on the complaint of a convicted person, his defender or legal representative, as well as on the petition, protest or complaints of the prosecution, which did not raise the issue of excessive leniency of punishment, the court, canceling the sentence on other grounds, has no right to draw conclusions about the excessive leniency of punishment imposed by the court verdict.

The footnote. Paragraph 24 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 22.12.2017 No. 13 (effective from the date of the first official publication).

If the court of first instance has applied the principle of partial addition of punishments imposed for each crime when imposing punishment for a set of crimes, courts considering complaints and petitions, protests against sentences, and resolutions may not apply the principle of full addition of punishments even in cases where these judicial authorities mitigate the punishment for one or more crimes included in the list of crimes. the totality.

If the court of first instance, when imposing a sentence based on a set of sentences, applies the principle of absorbing one punishment by another in violation of the law or because it is impossible to attach the unserved part of the punishment in accordance with the rules of part two of Article 60 of the Criminal Code, the courts considering complaints and petitions, protests against sentences, resolutions, in case of mitigation of punishment by the last sentence The Court has the right to partially or completely add the unserved punishment under the previous sentence, provided that the final punishment does not exceed the amount of the punishment., appointed by the verdict, taking into account the changes made to it by subsequent instances.

When reclassifying an act from one article to several articles of the criminal law providing for liability for a less serious crime, when this does not worsen the situation of the convicted person and does not violate his right to defense, the courts considering complaints and petitions, protests against sentences and decisions, deciding on punishment, apply the rules of Article 58 of the Criminal Code. At the same time, the final punishment should not be more severe than the punishment imposed by the verdict.

The footnote. Paragraph 25 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 22.12.2017 No. 13 (effective from the date of the first official publication).

In the case when a person has committed two or more crimes that constitute a repetition, but the court of first instance mistakenly qualified them under two or more articles (parts of the article), having given a correct legal assessment of the act under one article and mistakenly qualified some acts under another article providing responsibility for a more serious crime, the courts considering complaints and petitions, protests against sentences, rulings, reclassifying the relevant criminal acts to an article on a less serious crime, The court has the right, within the limits of its sanction, to determine a more severe punishment than that imposed by the court of first instance, without exceeding, however, the final amount of punishment imposed by the verdict. Courts that consider complaints and petitions, protests against sentences, resolutions, do not have the right to impose additional punishment if it was not imposed by a verdict, and in the case of a reclassification of the crime to an article of the law providing for its mandatory application. If, when imposing an additional penalty in the form of deprivation of the right to hold certain positions or engage in certain activities, the sentence does not specify or inaccurately specify positions or types of activities, the court of a higher instance has the right to cancel this additional punishment or make appropriate clarifications to the sentence, provided that the situation of the convicted person does not worsen.

At a new hearing of the case after the cancellation of the sentence, the court may not impose additional punishment under the same article of the criminal offense if it was not imposed by the original sentence, except in cases of cancellation of the sentence due to leniency of punishment or due to the need to apply the law on a more serious criminal offense.

The footnote. Paragraph 26 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 22.12.2017 No. 13 (effective from the date of the first official publication).

Invalidate them:

1) Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated April 30, 1999 No. 1 "On the observance by courts of legality in the imposition of criminal punishment";

2) Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated October 19, 2001 No. 15 "On certain issues of sentencing to imprisonment";

3) Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated October 28, 2005 No. 8 "On Amendments to the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan No. 15 dated October 19, 2001 "On certain issues of sentencing to imprisonment"";

4) Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated December 25, 2007 No. 9 "On Amendments to Resolution of the Plenum of the Supreme Court of the Republic of Kazakhstan No. 1 dated April 30, 1999 "On the observance of legality in the imposition of criminal punishment"";

5) Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated December 22, 2008 No. 9 "On Amendments to the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated April 30, 1999 No. 1 "On the observance by courts of legality in the imposition of criminal punishment"";

6) Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated December 22, 2008 No. 16 "On Amendments to the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated October 19, 2001 No. 15 "On certain issues of sentencing to imprisonment"";

7) paragraph 7 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated December 25, 2006 No. 12 "On Amendments and additions to Certain Resolutions of the Plenum and regulatory Resolutions of the Supreme Court of the Republic of Kazakhstan";

8) paragraphs 3, 5 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated April 21, 2011 No. 1 "On Amendments and additions to certain regulatory resolutions of the Supreme Court of the Republic of Kazakhstan".

According to article 4 of the Constitution of the Republic of Kazakhstan, this regulatory resolution is included in the current law, is generally binding and enters into force from the date of its official publication.

Chairman

The Supreme Court

Republic of Kazakhstan

K. MAMIE

Judge of the Supreme Court

Republic of Kazakhstan,

Secretary of the plenary session

K. SHAUKHAROV

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

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