On the qualification of the repetition and totality of criminal offenses

Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated December 25, 2006 No. 11.

     The footnote. The title is amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 3 (effective from the date of the first official publication).

    The footnote. Throughout the text:

The words "crimes", "crimes", "crimes", "crimes", "crimes" are replaced respectively by the words "criminal offenses", "criminal offense", "criminal offenses", "criminal offenses", "criminal offenses", "criminal offenses";

The numbers "12" are replaced by the numbers "13" in accordance with the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 3 (effective from the date of the first official publication).

     In order to develop uniformity in the application of the norms of the criminal law on the qualification of repeated and cumulative criminal offenses, the plenary session of the Supreme Court of the Republic of Kazakhstan decides:

The correct application of the criminal law ensures protection from unjustified accusations and convictions of citizens, as well as the imposition of fair and proportionate punishment on the defendants. Therefore, when several criminal offenses are committed by the same person, the circumstances necessary for the correct application of the criminal law should be clarified and qualified, taking into account the provisions of articles 12 and 13 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code), which contain definitions of ongoing criminal offenses, repeated criminal offenses, and the real and ideal totality of criminal offenses.

    The footnote. Paragraph 1 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 3 (effective from the date of the first official publication).

Repetition involves the commission by the same person of several criminal offenses provided for in the same article or the same part of the article of the Special Part of the Criminal Code.

    A criminal offense is not recognized as having been committed repeatedly if a person has been convicted of a previously committed criminal offense or released from criminal liability on the grounds established by law.

    A crime and a criminal offense do not constitute a repetition.

    When qualifying an act on the basis of repetition or recognizing the repetition of crimes in accordance with paragraph 1) In the first part of Article 54 of the Criminal Code, a circumstance aggravating criminal liability and punishment of the perpetrator should be based on the fact that a crime is recognized as having been committed repeatedly if there has previously been both a completed identical crime and an attempt on it, co-execution or complicity in this crime.

    The footnote. Paragraph 2, 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 12/11/2020 No. 6 (effective from the date of the first official publication).

If the repetition in the criminal law norm is indicated as a qualifying feature, then the commission by the same person of several identical criminal offenses is subject to qualification in general according to the relevant article (part of the article) of the Criminal Code, which provides for responsibility for the repeated commission of this criminal offense.

     When committing several criminal offenses provided for in different parts of the same article of the Criminal Code, providing for different qualifying features, these acts are generally subject to qualification only according to the part of the article that establishes a more severe punishment and covers the qualifying features. In such cases, the qualifying signs of a criminal offense established in relation to the acts specified in other parts of this article of the criminal law are subject to imputation and must be indicated in the verdict.

     Repetition is formed only by identical criminal offenses. Therefore, the commission of several homogeneous criminal offenses cannot be recognized as a repetition of criminal offenses and is subject to qualification as a set of criminal offenses. For example, the commission of theft and robbery by a person entails the qualification of his acts under the totality of Articles 188 and 191 of the Criminal Code without the qualifying feature "repetition".

    The footnote. Paragraph 3 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 03/31/2017 No. 3 (effective from the date of the first official publication).

It is necessary to distinguish between repeated criminal offenses and ongoing criminal offenses. The commission by the same person of two or more criminal acts, similar to each other in the method of commission and object, characterized by a single intent and united by a single purpose, in material terms and the same consequences, does not constitute repetition. In such cases, everything done as a whole should be recognized as a single ongoing criminal offense and qualified under one article or part of the article of the Criminal Code, which provides for responsibility for the commission of this criminal offense.

     If, during the period of the ongoing criminal offense, amendments were made to the criminal law establishing stricter liability for this act, then all episodes of the ongoing criminal offense are subject to qualification as a single criminal offense under the new law, if at least one of the episodes was committed during the period of the new version of the law.

     If the same person commits another criminal offense during the period of the ongoing criminal offense, the signs of which are not covered by the disposition of the article of the Criminal Code providing for responsibility for the ongoing criminal offense (for example, theft was committed during the period of malicious evasion of payment of funds for the maintenance of children), his actions are subject to qualification according to the totality of criminal offenses under the relevant article, providing for liability for an ongoing criminal offense, and under the article of the Criminal Code, providing for liability for another criminal offense.

    If a person commits, during the period of an ongoing criminal offense provided for in one part of the article of the Criminal Code, another criminal offense provided for in another part of that article of the Criminal Code, the signs of which are not covered by the disposition of the part of the article of the Criminal Code providing for liability for the ongoing criminal offense (for example, during the period of illegal possession for the sale of narcotic drugs on a large scale, repeated sales are committed his actions are subject to qualification according to the part of the article of the Criminal Code, which establishes a more severe punishment. At the same time, the signs of all the acts committed by a person must be imputed to the charge and indicated in the verdict.

    The footnote. Paragraph 4 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 21.04.2011 No. 1 (effective from the date of its official publication).

When applying the criminal law, it is necessary to take into account that the totality of criminal offenses is divided into real and ideal. The real totality of criminal offenses is formed by the commission by one person of two or more criminally punishable acts, each of which contains a specific composition of a criminal offense provided for in different articles (parts of the article) The special part of the Criminal Code. With an ideal totality, one act of the perpetrator contains signs of at least two different types of criminal offenses provided for in two or more articles or parts of the Criminal Code, and the whole deed is not fully covered by any of these norms of the criminal law.

If the perpetrator has been convicted or released from liability for one of the committed criminal offenses on the grounds provided for by the criminal law, then these criminal offenses cannot be included in the aggregate with other criminal offenses about which the case is being considered. This circumstance may be taken into account when imposing punishment.

    The footnote. Paragraph 6 as amended 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).

As a set of criminal offenses, it is also necessary to qualify the commission by a person of several criminal offenses, some of which fall under the scope of one article (part of the article), which provides for a qualifying feature - repeated commission of a criminal offense, and other criminal offenses fall under other articles of the Criminal Code. In such cases, several acts that constitute a repetition must be qualified according to the part of the Criminal Code article that provides for this qualifying feature of these criminal offenses, and other actions responsible for which are provided for in other articles of the Criminal Code - according to the relevant articles of the Criminal Code.

In the case of a combination of criminal offenses, the guilty person, according to article 13 of the Criminal Code, is criminally liable for each committed criminal offense under the relevant article or part of the article of the Criminal Code. This means that every act recognized by the court as proven, as a rule, is subject to independent qualification under the relevant article (part of the article) of the Criminal Code.

     A set of criminal offenses can be qualified under one article of the Criminal Code only in cases where the signs of all committed criminal offenses are covered by the disposition of one of the articles of the Criminal Code, which provides for a more severe punishment.

A set of criminal offenses can be qualified under one article of the Criminal Code only in cases where the signs of all committed criminal offenses are covered by the disposition of one of the articles of the Criminal Code, which provides for a more severe punishment.

In order to ensure the correct qualification of the acts included in the totality in each specific case, it is necessary to carefully examine all the circumstances of the case, identify the sequence of criminal offenses, motives, goals, form of guilt, as well as analyze and compare the dispositions of each of the norms of the criminal law and determine whether the signs of one act are covered, responsibility for which is provided for by one article of the Criminal Code, the disposition of another article providing for responsibility for the commission of another, included in the totality of the criminal offense. At the same time, the signs of a criminal offense should be understood as such signs that form its composition: object, objective side, subject, subjective side.

     The difference between the signs forming the composition of a criminal offense and the qualifying signs of a criminal offense is that the absence of at least one of the signs of a criminal offense precludes recognition of the act as a criminal offense, while the absence of qualifying signs of a criminal offense gives grounds to qualify the act according to the rule of law, which provides for less strict liability for the commission of the same criminal offense (simple composition).

When distinguishing an ideal set of criminal offenses from an ongoing criminal offense subject to qualification under one article (part of an article) of the Criminal Code, it is necessary to determine whether one or more criminal law norms provide for the objects that have been infringed upon and the consequences that have resulted from this criminal offense, and also take into account how the subjective side is characterized. each of the committed acts.

The commission of an encroachment on several legally protected objects specified in different articles of the Criminal Code, and when the object specified in one article is not part of the object specified in another article, should be qualified as a set of criminal offenses under the relevant articles of the Criminal Code, providing for liability for encroachment on each object. Similarly, acts that differ in the subject of encroachment are subject to qualification (for example, when the same person commits theft of objects of special value and, along with this, theft of other property, the first act is subject to qualification under Article 193 of the Criminal Code, the other act - under another relevant article of the Criminal Code).

     When qualifying an act, the object of which is specified in several articles of the Criminal Code (competition of general and special norms), there is no set of criminal offenses, and the act, according to the third part of Article 13 of the Criminal Code, is subject to qualification according to the corresponding special norm.

     When the various socially dangerous consequences of a criminal offense are not provided for by one norm of the criminal law to be applied, and relate to the direct objects of different criminal offenses, the act should be classified as a set of criminal offenses according to the relevant articles of the Criminal Code, which establish responsibility for each criminal offense.

    The footnote. Paragraph 11 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 3 (effective from the date of the first official publication).

When establishing in a committed act the signs of a criminal offense specified in the article of the Criminal Code, which provides for responsibility for the commission of a qualified composition (for example, special cruelty in murder), and along with other signs that are the basis for qualifying the same act under mitigating circumstances (for example, in a state of passion), there is no set of criminal offenses. In such cases, the act is subject to qualification under Article 101 of the Criminal Code, which provides for less strict liability for the commission of this criminal offense (for example, murder committed with extreme cruelty in a state of passion is subject to qualification only under Article 101 of the Criminal Code).

     In cases where different qualifying criteria mitigating criminal liability for the commission of the same criminal offense are provided for in several articles of the Criminal Code, the act is subject to qualification under the article of the Criminal Code, which provides for less strict liability. (For example, murder committed while exceeding the limits of necessary defense and in a state of passion is subject to qualification only under Article 102 of the Criminal Code).

    The footnote. Paragraph 12 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 3 (effective from the date of the first official publication).

When the subjective side of one of the criminal offenses committed by the same person is characterized by an intentional form of guilt, and the other criminal offense is characterized by negligence (for example, committing premeditated murder of one person and causing death to another person by negligence), then even if the committed criminal offenses coincide in the object, the objective side and the consequences that have occurred Each act should be qualified according to the relevant articles of the Criminal Code, which provide for liability for intentional and reckless criminal offenses.

If the law stipulates that one of the criminal offenses included in the aggregate can only be committed by a special entity, and other criminal offenses by other persons, then such criminal offenses must be separately qualified under the relevant articles of the Criminal Code providing for liability for these criminal offenses.

     Similarly, criminal offenses that form a set are subject to qualification if, when committing one of them, the subject of the criminal offense was the perpetrator, and when committing others, the organizer, instigator or accomplice. In such cases, when qualifying the actions of a person who participated in the commission of a criminal offense as an organizer, instigator, or accomplice, it is necessary to apply article 28 of the Criminal Code and the corresponding article of the Special Part of the Criminal Code, which provides for responsibility for the committed criminal offense, and his act, in which he was the perpetrator, should be qualified independently under the relevant article of the Criminal Code.

If one of the committed criminal offenses was a means or method of committing another criminal offense and the signs of both criminal offenses are indicated in the disposition of the relevant provision of the criminal law, then the deed is subject to qualification only under one article of the Criminal Code, which provides for liability for a more serious criminal offense. At the same time, additional qualifications under the article providing for liability for a less serious criminal offense are not required. (For example, abuse of official position in the commission of smuggling is subject to qualification only under paragraph 2 of the second part of Article 286 of the Criminal Code).

The footnote. Paragraph 15 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 3 (effective from the date of the first official publication).

The conjugation of one criminal offense with another means the mutual connection of criminal offenses, the accompaniment of one criminal offense by the commission of another criminal offense. In such cases, the perpetrators commit actions (with or without a time gap) aimed at fulfilling each of the criminal offenses.

     The combination of criminal offenses in their real totality (that is, when they are committed by several acts of the perpetrator), as well as in their ideal totality (when one action or omission contains signs of criminal offenses provided for in two or more articles of the Criminal Code), in accordance with Article 13 of the Criminal Code, entails the qualification of each criminal offense separately under the corresponding article. UK.

When several heterogeneous criminal offenses are committed by several successive acts of the perpetrator, and when the commission of the first of them is the basis for qualifying the second criminal offense on the qualifying basis of its association with the first criminal offense (for example, first robbery, extortion, banditry, rape, sexual acts were committed against the victim, and then - his murder), each criminal offense is subject to independent qualification under the relevant article of the Criminal Code.

     Similarly, criminal offenses are subject to qualification, forming a set when the first criminal offense (for example, murder) is committed in order to facilitate the subsequent commission of a second criminal offense (for example, embezzlement) or when, after committing the first criminal offense (for example, rape), the perpetrator commits another criminal offense (for example, murder) in order to conceal the first.

If the norm of the criminal law to be applied in this case, indicating the totality of criminal offenses, fully covers all the signs of each of the committed criminal offenses and provides for the occurrence of socially dangerous consequences of each of them, then the act as a whole is subject to qualification under the relevant article of the Criminal Code, which provides for responsibility for the commission of a more serious criminal offense with this qualifying feature. (for example, committing a robbery and causing serious harm to health).

If a person commits completed criminal offenses and criminal offenses that are interrupted at one stage or another of their commission, they cannot be qualified under one article of the Criminal Code. In such cases, an unfinished criminal offense is qualified under the relevant part of Article 24 of the Criminal Code and article (parts of the article) Of the special part of the Criminal Code, and the completed criminal offense is under the article of the Criminal Code, which provides for liability for this criminal offense. At the same time, if the committed acts are provided for by the same article or part of the article of the Special Part of the Criminal Code, then the second criminal offense (completed or unfinished) is subject to qualification on the basis of repetition.

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

Courts must strictly comply with the requirements of the normative resolution of the Supreme Court of the Republic of Kazakhstan dated April 20, 2018 No. 4 "On the court verdict", set out in the verdict the conclusions on the qualification of the defendants' actions, providing analysis and justification, with reference to the norms of the criminal law and explanations given in the relevant normative resolutions of the Supreme Court of the Republic of Kazakhstan.

    The footnote. Paragraph 20 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 11.12.2020 No. 6 (effective from the date of the first official publication).

When considering cases on appeal and cassation, courts should take into account that the incorrect application of the criminal law is the basis for changing or canceling the verdict and take measures to eliminate errors. At the same time, it should be borne in mind that the specified authorities cannot make a decision to change the qualification of a criminal offense, entailing a significant change in the wording of the charge, as well as the application of a criminal law, leading to a deterioration in the situation of convicts, in the absence of a protest from the prosecutor, a complaint or a petition from the prosecution containing relevant arguments.

    The footnote. Paragraph 21 as amended by 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); dated 03/31/2017 No. 3 (effective from the date of the first official publication).

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,

Acting Director

Secretary of the plenary session

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