Sentencing for a Criminal Offense Committed in Complicity
🔷 General Characteristics of the Article
Article 57 of the Criminal Code of the Republic of Kazakhstan regulates the key principles of individualization of punishment when a criminal offense is committed in complicity, that is, by two or more persons. The main purpose of this provision is to emphasize that each accomplice bears personal criminal responsibility, taking into account their specific contribution to the committed act.
🟦 Commentary by Paragraphs of the Article
🔹 Paragraph 1. Individualization of Punishment Depending on the Role
When imposing a sentence, the court is obliged to take into account:
· the role of the accomplice (organizer, perpetrator, instigator, aider and abettor — see Article 28 of the Criminal Code of the Republic of Kazakhstan);
· the nature and degree of participation (for example, active actions, incitement, provision of means);
· the influence of the person’s actions on the occurrence of consequences;
· the scope and severity of the harm that was actually caused or could have been caused.
📌 Example:If two persons entered a dwelling with the intent to commit theft, but one of them merely transported the other to the scene of the crime and did not enter the house, their role may be classified as aiding and abetting. Accordingly, their punishment should be less severe than that of the direct perpetrator.
🔹 Paragraph 2. Personalization of Mitigating and Aggravating Circumstances
The legislator’s position here is unequivocal: mitigating or aggravating circumstances may be taken into account only with respect to the accomplice to whom they personally relate.
📌 Example:If one of the accomplices has a prior conviction and was in a state of alcohol intoxication, this does not aggravate the liability of the other participants who committed the offense while sober and without prior convictions.
Similarly, if one of the accomplices compensated for the damage caused, this does not reduce the guilt of another accomplice who did not undertake such efforts.
⚖️ Judicial Practice
🔹 Resolution of the Supreme Court of the Republic of Kazakhstan No. 1 of July 11, 2003The Court explained that individualization of punishment is a fundamental principle and requires the court to clearly establish the role of each accomplice.
🔹 Review of Judicial Practice of the Supreme Court of the Republic of Kazakhstan on Cases of Robbery and Armed RobberyErrors were noted where courts imposed identical sentences on persons with differing degrees of guilt. The Supreme Court emphasized the necessity of strict compliance with the provisions of Article 57 of the Criminal Code of the Republic of Kazakhstan.
📚 Related Provisions
· Article 28 of the Criminal Code of the Republic of Kazakhstan — Forms of complicity: organizer, perpetrator, instigator, aider and abettor.
· Article 30 of the Criminal Code of the Republic of Kazakhstan — Excess of an accomplice (important for delineating personal criminal responsibility).
· Articles 53 and 54 of the Criminal Code of the Republic of Kazakhstan — Mitigating and aggravating circumstances.
· Article 52 of the Criminal Code of the Republic of Kazakhstan — General principles of sentencing.
🌍 International Standards
🔹 The principle of individualization of punishment, enshrined in international instruments (for example, Article 15 of the International Covenant on Civil and Political Rights), means that each participant in a crime must be punished in accordance with their personal guilt, rather than automatically on an equal basis with others.
🔹 Case law of the European Court of Human Rights (ECtHR)In cases against the Russian Federation and other states, the Court has held that punishment must not be collective in nature. A violation of the principle of individualization of punishment is regarded as a breach of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
🟨 Conclusion
Article 57 of the Criminal Code of the Republic of Kazakhstan:
· enshrines the principle of personal criminal responsibility;
· requires the court to establish the role and degree of guilt of each accomplice;
· excludes automatism in assessing guilt in “group cases”;
· guarantees that mitigating and aggravating circumstances are applied precisely and individually, without prejudice to the rights of other participants in the proceedings.
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