On the application of legislation on recidivism by courts
Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated December 25, 2007 No. 8.
The footnote. Throughout the text, the numbers "13", "77" are replaced by the numbers "14", "79", respectively, in accordance with the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication).
In order to ensure the correct and uniform application of criminal legislation on the definition of the type of recidivism and the legal consequences associated with recidivism, the plenary session of the Supreme Court of the Republic of Kazakhstan
Decides:
In accordance with article 14 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code), the commission of a serious crime by a person is recognized as a recidivism if that person was previously sentenced to imprisonment for committing a serious crime. A dangerous recidivism of crimes is the commission by a person of: a serious crime if that person has previously been twice sentenced to imprisonment for committing a serious crime or has been convicted of a particularly serious crime; a particularly serious crime if he has previously been sentenced to imprisonment for a serious or particularly serious crime.
The footnote. Paragraph 1 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication).
2 . Considering whether a defendant has a recidivism of crimes and making an appropriate decision is not the right, but the duty of the court, therefore, in all cases where there are grounds provided for by law, the court must, in the descriptive and motivational part of the verdict, provide the appropriate motives and grounds, indicating outstanding and outstanding convictions, the severity of previous and newly committed crimes, and in particular The operative part of the sentence should set out the decision to recognize the relevant type of recidivism with reference to the relevant paragraph and part of Article 14 of the Criminal Code.
If the court, having cited the grounds for recidivism in the reasoning part of the verdict, did not indicate in the operative part of the verdict the decision to recognize the relevant type of recidivism in the defendant's actions, it should be considered that the court did not recognize the recidivism of crimes by this verdict.
Recognition of a person by a previous sentence as a particularly dangerous repeat offender in accordance with Article 23-1 of the Criminal Code of the Kazakh SSR (hereinafter - the Criminal Code Kaz. SSR), as well as the recognition or non-recognition by previous verdicts of the defendant's recidivism of crimes on the basis of Article 14 of the Criminal Code does not relieve the court from the obligation, when considering a case of a new crime, to re-examine the question of the presence of a recidivism of crimes, its type and make an appropriate reasoned decision.
When recognizing a recidivism and determining its type, it is necessary to carefully clarify the circumstances concerning the previous convictions of each of the defendants. In particular, the age of the defendant at the time of the commission of the crimes, the category of crimes for which the defendant had previously been convicted, the type of punishment that was determined by the court verdict, whether the sentence was actually served, whether the sentence was replaced by another punishment, and therefore, when and on what grounds was the convicted person released from serving his sentence, and whether previous convictions were removed or expunged.
In accordance with paragraph 4) of the first part of Article 113 and paragraph 2) the first part of Article 204 of the Criminal Procedure Code of the Republic of Kazakhstan (hereinafter - Criminal Procedure Code), which oblige to establish and prove circumstances affecting the degree and nature of the suspect's responsibility, the criminal prosecution authorities must indicate in the decision on the qualification of the suspect's acts and in the indictment that the suspect committed a criminal offense with a corresponding recidivism and confirm this by attaching to the materials of the criminal case copies of verdicts on his previous outstanding and outstanding convictions, indicating the dates of their entry into force, and if the sentences have been changed, then copies of the decisions of higher courts., as well as information about release from punishment, about the removal of previous convictions. For criminal convictions based on verdicts from other States, it is sufficient to have official information about them in the case file. The absence of indications of the grounds for recognizing recidivism in the decision on bringing in as a suspect or in the indictment is an obstacle to the court recognizing recidivism in sentencing.
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, to supplement the charge with an indication of the commission of a crime by the accused in case of a corresponding recidivism.
If the materials of the criminal case do not contain sufficient data on the defendant's previous convictions, the courts should request them from the prosecution. In the absence of these materials and the impossibility of obtaining them, the defendant's admission of a recidivism is unacceptable, which the courts must indicate in the verdict.
If materials on a person's previous convictions are submitted to the court of appeal, they cannot be taken into account and are declared inadmissible, as indicated in the appeal decision.
The footnote. Paragraph 5, as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication); dated 12/11/2020 No. 6 (effective from the date of the first official publication); dated 12/22/2022 No. 10 (effective from the date of the first official publication).
According to the third part of Article 14 of the Criminal Code, convictions for crimes committed by a person under the age of 18 are not taken into account when recidivism is recognized. In this regard, the courts, when investigating the circumstances related to the conviction of a person in the past, should, if necessary, have not only the operative part of the verdict, but also its full text in order to determine whether the defendant was a minor when committing the crimes specified in the verdict.
The footnote. Paragraph 6 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication).
According to the first part of Article 79 of the Criminal Code, a person is recognized as having a criminal record from the date of entry into force of the conviction, therefore, if a person commits a new crime before the entry into force of the previous sentence, the conviction under the previous sentence is not taken into account when determining the type of recidivism.
In accordance with the third part of Article 14 of the Criminal Code, criminal records that have been removed or expunged are not taken into account when recidivism is recognized. In this regard, it is necessary to check whether the repayment periods of previous convictions that must be taken into account when resolving the issue of recidivism have expired and calculate them in strict accordance with the provisions specified in article 79 of the Criminal Code.
At the same time, it should be borne in mind that according to the second part of Article 79 of the Criminal Code, a person who has been convicted and released from punishment on the grounds specified in the sixth part of Article 393 of the CPC is recognized as having no criminal record in connection with his release from punishment (in connection with the issuance of an amnesty act exempting from the use of punishment imposed convicted by this sentence, or in connection with the absorption of the term of punishment imposed by the sentence by the time the person is in custody in this case in connection with the preventive measure chosen for him in the form of detention).
If a person is released from serving a sentence during the execution of a sentence on the basis of an amnesty act or on other grounds provided for by law, the repayment period of such person's criminal record is calculated in accordance with part four of Article 79 of the Criminal Code.
The footnote. Paragraph 8 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication).
If a person has been conditionally convicted under Article 63 of the Criminal Code and additional punishment has been imposed on him, then the term of repayment of the conviction for the main and additional punishment is calculated independently: for a suspended sentence based on paragraph 1) of the third part of Article 79 of the Criminal Code of the probation control period; for additional punishment based on the fifth part of Article 79 of the Criminal Code for the actual serving of the sentence. Therefore, if a person commits a new crime after the expiration of the probation control period imposed by the suspended sentence, but before the additional sentence is fully served, he cannot be recognized as having a criminal record of imprisonment. In such cases, the court of the last sentence takes into account the outstanding criminal record of the person only to the punishment imposed as an additional one, and when imposing punishment based on the totality of sentences, the court, in compliance with the requirements of Articles 60 and 61 of the Criminal Code, fully or partially attaches to the punishment imposed by the last sentence, the unserved part of the additional punishment imposed by the previous sentence..
When applying article 60 of the Criminal Code and listing outstanding convictions, the type and amount of both the main and additional punishment should be indicated in the introductory part of the sentence.
The footnote. Paragraph 9 as amended by the normative resolution of the Supreme Court of the Republic of Kazakhstan dated 04/21/2011 No. 1 (effective from the date of official publication); as amended by the normative resolutions of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication); dated 12/11/2020 No. 6 (effective from the date of the first official publication); dated 12/22/2022 No. 10 (effective from the date of the first official publication).
9-1. When a person is convicted of a combination of criminal offenses or sentences for crimes of varying severity, the convictions for each crime are extinguished independently in accordance with part three of Article 79 of the Criminal Code, while all repayment periods are calculated from the moment the person actually serves the final sentence imposed by the court on the basis of articles 58 or 60 of the Criminal Code.
The footnote. The Resolution was supplemented by paragraph 9-1 in accordance with the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/21/2011 No. 1 (effective from the date of official publication); as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication).
In the case of a conviction for a combination of criminal offenses, when one of the crimes was committed at a minor age, and the other crime after reaching the age of eighteen, the repayment period for each of the crimes is calculated after serving the sentence imposed for a combination of criminal offenses independently: at a minor age - according to Article 89 of the Criminal Code, and at the age of majority - according to Article 79 UK. In such cases, a criminal record that is part of a set of criminal offenses committed at the age of majority is taken into account.
At the same time, this criminal record is taken into account when recognizing a recidivism only if, by the time of the commission of a new crime, the repayment period for a criminal record for a crime committed by a person after reaching the age of majority (eighteen years) has not expired.
The footnote. Paragraph 10 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication).
In cases where, during the execution of a sentence, the deprivation of liberty imposed by the court was replaced by another more lenient punishment in accordance with Article 73 of the Criminal Code, the term of repayment of the criminal record is calculated from the moment of full serving of the more lenient punishment, as well as additional punishment imposed by the court, if the convicted person was not released from serving it. At the same time, the term of repayment of a criminal record is calculated according to the rules established in Article 79 of the Criminal Code for persons sentenced to imprisonment of the category of crimes to which the crime specified in the sentence belongs.
The footnote. Paragraph 11 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication).
The removal of a criminal record on the basis of an amnesty law or in connection with a pardon in accordance with part nine of Article 79 of the Criminal Code cancels all criminal consequences related to this conviction.
With this in mind, when a criminal record is withdrawn, the repayment period for previous convictions is calculated in accordance with the requirements of Article 79 of the Criminal Code. In such cases, the calculation of the repayment period for previous convictions does not take into account the interruption of the term by committing a crime for which the conviction was removed under an amnesty or in connection with a pardon.
The footnote. Paragraph 12, as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication); dated 12/11/2020 No. 6 (effective from the date of the first official publication).
On the basis of article 15 of the Law of the Republic of Kazakhstan dated January 9, 2006 No. 113 "On Amnesty in connection with the celebration of Independence Day of the Republic of Kazakhstan" (hereinafter referred to as the Law), criminal records should be recognized both for persons who were released from punishment on the basis of this Law, and for those persons who by the time the Law was issued The punishment has already been served.
The footnote. Paragraph 13 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication).
When deciding on the recognition of recidivism of crimes among persons previously convicted both in the Republic of Kazakhstan and in other States, courts should be guided by the legislation of the Republic of Kazakhstan, taking into account existing international treaties.
When recognizing a recidivism of crimes, outstanding and outstanding criminal convictions from sentences handed down by courts (tribunals) of the former USSR and the Union republics that were part of it are subject to accounting. Also in accordance with article 76-1 of the Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters (Minsk, January 22, 1993, as amended on March 28, 1997) and in accordance with article 99 of the Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters (Chisinau, dated October 7, 2002), criminal convictions that have not been dismissed or expunged may be taken into account in accordance with the verdicts of the countries participating in these Conventions.
At the same time, courts must take into account the requirements of Article 8 of the Criminal Code and, based on the qualification of crimes established by the verdicts of courts of foreign states, must determine the criminality and punishability of the committed act, the qualification of the crime and its severity, as well as the repayment periods of convictions according to the relevant norms of the criminal legislation of the Republic of Kazakhstan, without worsening the situation of convicted persons.
The footnote. Paragraph 14 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication).
In accordance with Article 11 of the Criminal Code, the courts must correctly determine the category of the crime committed by the defendant, for which the case is being considered.
If a person has an outstanding or outstanding criminal record for crimes classified under articles of the Criminal Code of Kazakhstan. The category of these crimes should be determined taking into account the requirements of Article 7-1 of the Criminal Code of the Kazakh SSR.
The crimes specified in part four of Article 11 of the Criminal Code and Article 7-1 of the Criminal Code of the Kazakh SSR should be considered grave crimes, and the crimes specified in part five of Article 11 of the Criminal Code should be considered especially grave. Crimes that, according to Article 7-1 of the Criminal Code of Kaz. SSRS were recognized as serious, and when recognizing recidivism, it should be taken into account in the same way as serious crimes, regardless of the fact that under the current Criminal Code they may be considered particularly serious crimes.
The footnote. Paragraph 15, as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 04/21/2011 No. 1 (effective from the date of official publication); dated 04/20/2018 No. 8 (effective from the date of the first official publication).
When investigating the circumstances related to previous unreturned and outstanding criminal convictions, the provisions of article 6 of the Criminal Code should be taken into account and, when deciding on the recurrence of crimes, criminal convictions for those acts that were decriminalized by the time of the verdict in the new case in accordance with changes in criminal legislation should not be taken into account.
When changing criminal legislation on the categories of crimes for which a person has outstanding or outstanding convictions in the direction of increasing their severity, they should be taken into account when recognizing recidivism as a crime of the category to which they belonged at the time of sentencing. In cases where, due to changes in legislation, crimes for which the defendant was previously convicted and has outstanding convictions have been transferred to the category of less serious crimes, their category in accordance with Article 6 of the Criminal Code should be determined and taken into account when recognizing recidivism under the new law.
The footnote. Paragraph 16 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication).
When classifying persons as previously sentenced to imprisonment in connection with the decision on the recognition of recidivism of crimes and its type, one should be guided by the explanations given in paragraph 12 of the normative resolution of the Supreme Court of the Republic of Kazakhstan dated June 25, 2015 No. 4 "On certain issues of criminal punishment" and in paragraphs 6, 6-1, 7, 8. Normative Resolution of the Supreme Court of the Republic of Kazakhstan dated June 23, 2006 No. 7 "On judicial practice of assigning types of institutions of the penal system to persons sentenced to imprisonment".
The footnote. Paragraph 17 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (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 12/22/2022 No. 10 (effective from the date of the first official publication).
When discussing the issue of recidivism among persons who have one criminal record for committing a combination of serious and (or) especially serious crimes, and who have committed a serious and (or) especially serious crime again, it is necessary to take into account the punishment imposed for a specific crime that is part of the totality, which is the basis for recognizing the appropriate type of recidivism. at the same time, the final punishment imposed on the totality of criminal offenses or on the totality of sentences is not taken into account.
The footnote. Paragraph 18 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication). 19. Excluded by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication). 20. Excluded by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication).
In cases where, according to the previous or last sentence, the final punishment of the defendant was determined according to the rules provided for in part six of Article 58 of the Criminal Code, convictions for several sentences for these crimes are taken into account when recidivism is recognized as one conviction for a combination of criminal offenses.
The footnote. Paragraph 21 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication).
For the recognition of recidivism, both in previous sentences and in the case under consideration, the stage of the commission of the crime does not matter (whether the crime was completed or an attempt to commit it took place). It also does not matter for the recognition of recidivism whether the defendant was the perpetrator of the crime or his complicity in crimes was expressed in another form, and whether he fully served his sentence under the previous sentence or committed a new crime during its serving, or before serving the sentence in full in view of release from punishment on the grounds provided by law.
Excluded by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/21/2011 No. 1 (effective from the date of its official publication).
The presence of a recidivism of crimes in accordance with paragraph 1) The first part of Article 54 of the Criminal Code is considered as a circumstance aggravating criminal liability and punishment. When imposing punishment for the recurrence of crimes or dangerous recurrence of crimes in accordance with article 59 of the Criminal Code, the number, nature and degree of public danger of previously committed crimes, the circumstances due to which the corrective effect of the previous punishment was insufficient, as well as the nature and degree of public danger of newly committed crimes are taken into account.
If the indictment does not indicate as an aggravating circumstance that the accused committed a criminal offense in the event of a corresponding recidivism, if there are grounds provided for by law, and this violation is not excluded by the prosecutor by drawing up a new indictment, then the court has no right to indicate in the verdict that the offense was committed in the event of a recidivism, but is obliged to inform a higher authority about the violation. the Prosecutor's Office to take appropriate measures.
The footnote. Paragraph 24 as amended by the normative resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication); as amended by the normative resolutions of the Supreme Court of the Republic of Kazakhstan dated 12/11/2020 No. 6 (effective from the date of the first official publication); dated 12/22/2022 No. 10 (effective from the date of the first official publication publications).
When determining the type of institution of the penal enforcement system, a person in whose actions the court recognized the relevant type of recidivism of crimes should be guided by Article 46 of the Criminal Code, as well as the normative resolution of the Supreme Court of the Republic of Kazakhstan dated June 23, 2006 No. 7 "On judicial practice of assigning types of institutions of the penal enforcement system to persons sentenced to imprisonment."
The footnote. Paragraph 25 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication).
The recognition by a court verdict of the presence of an appropriate type of recidivism among convicted persons is also subject to consideration when deciding whether to remove a criminal record before the expiration date. According to the seventh part of Article 79 of the Criminal Code, the removal of criminal records before the expiration of their repayment period for persons sentenced to imprisonment for grave or especially grave crimes, as well as persons who were sentenced by court to punishment for a relapse of crimes or a dangerous relapse, is not allowed.
The footnote. Paragraph 26 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication).
When deciding on the establishment of administrative supervision over persons with recidivism, it is necessary to be guided by the Law of the Republic of Kazakhstan dated July 15, 1996 "On Administrative Supervision of persons released from prison" and the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated May 31, 2019 No. 1 "On Judicial practice of applying legislation on administrative supervision".
The footnote. Paragraph 27 as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication); dated 12/11/2020 No. 6 (effective from the date of the first official publication).
When considering criminal cases on appeal, cassation, as well as materials related to the execution of criminal penalties, courts should pay attention to the legality of the verdict regarding the recognition of recidivism and the definition of its type, the correctness of sentencing in case of recidivism, and take measures to eliminate judicial errors in a timely manner.
The adoption by the court of appeal of the decision provided for in paragraph 6) of the first part of Article 442 of the CPC is allowed only in cases where the court of first instance, if there are sufficient grounds in the case, did not consider the issue of recognizing a recurrence of crimes or considered, but did not set out the decision in the operative part of the verdict, or made an incorrect decision, provided that The need to change the sentence in this part is indicated in the prosecutor's petition or in the complaint of the prosecution.
If, during the pre-trial investigation of the case, the decision on the qualification of the suspect's act and the indictment as an aggravating circumstance did not indicate the commission of a criminal offense with a corresponding recidivism, or when this circumstance, although indicated, was not confirmed by the relevant case materials and the prosecution did not make up for it at the hearing., When considering cases on appeal, the complaints of the prosecution and the prosecutor's petition for a change of sentence and recognition of the convicted person's recidivism of crimes are not subject to satisfaction.
The footnote. Paragraph 28 as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 04/21/2011 No. 1 (effective from the date of official publication); dated 04/20/2018 No. 8 (effective from the date of the first official publication).
When considering cases of recidivism, it is necessary to clarify the causes and conditions that contributed to the repeated commission of crimes by persons with outstanding and outstanding convictions, to pay attention to the shortcomings in the work of the bodies responsible for the execution of sentences and carrying out work on the correction and re-education of convicts. In particular, it should be established whether educational and preventive work was carried out with them during the period of serving their sentence and after release from punishment, whether the behavior of previously convicted persons was monitored and, if necessary, administrative supervision was established, whether they were assisted in their work and household arrangements, and others. If necessary, private decisions should be made in accordance with the fourth part of Article 53 of the CPC.
The footnote. Paragraph 29 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication).
To invalidate the Resolution of the Plenum of the Supreme Court of the Republic of Kazakhstan No. 1 dated May 27, 1994 "On the practice of judicial review of criminal cases of recidivism".
According to article 4 of the Constitution of the Republic of Kazakhstan, this regulatory resolution is included in the current law, and is also generally binding and effective from the date of its official publication.
Chairman of the Supreme Court
Republic of Kazakhstan
Judge of the Supreme Court
Republic of Kazakhstan,
Secretary of the plenary session
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