Sentencing for a Cumulative Set of Criminal Offenses
🔹 General Characteristics of the Article
Article 58 of the Criminal Code of the Republic of Kazakhstan regulates the procedure for imposing a final sentence when a person is found guilty of committing two or more criminal offenses (crimes or criminal misdemeanors) that are not covered by the signs of a continuing offense, systematic conduct, or a qualifying element, and each of which requires independent legal qualification.
Such a situation is referred to as a real concurrence (aggregate) of crimes.
🔹 Legal Nature of the Aggregate of Criminal Offenses
According to Article 59 of the Criminal Code of the Republic of Kazakhstan, an aggregate of criminal offenses exists if:
· a person committed two or more acts;· each act contains the elements of a criminal offense;· no conviction had been previously rendered for those acts.
🔸 Commentary on the Parts of Article 58
Part 1. General Rule: Absorption or Cumulation
🔹 Absorption — a less severe punishment is absorbed by a more severe one. It is applied when offenses are similar in nature and have a low degree of public danger.
🔹 Cumulation (addition) — punishments are added in whole or in part. This is a stricter approach applied in cases of heterogeneous acts, repetition, recidivism, or serious and especially serious crimes.
Example from judicial practice:If a person is convicted of:· theft (Article 188 CC) — 2 years;· robbery (Article 191 CC) — 5 years;
the final sentence may be:· 5 years (by absorption), or· 6–7 years (by partial cumulation).
Part 2. Aggregate of Criminal Misdemeanors
🔹 Criminal misdemeanors are characterized by the lowest degree of public danger.
🔹 Limits of punishment:· fine — not more than 400 Monthly Calculation Indices (MCI);· community service — not more than 400 hours;· arrest — not more than 50 days.
🔹 If the aggregate also includes crimes of minor or medium gravity, only absorption is permitted. This excludes cumulative enhancement and limits the severity of punishment.
Practice:Frequently applied in cases of serial offenses, such as multiple episodes of petty theft, insult, or traffic violations.
Part 3. Serious and Especially Serious Crimes (up to 20 years)
🔹 If the aggregate includes a serious or especially serious crime, punishments may be cumulated.
🔹 The upper limit is up to 20 years of imprisonment, which correlates with:· Article 46 CC — the maximum term of imprisonment (excluding life imprisonment);· Article 60 CC — specifics of sentencing in cases of recidivism.
Example:· murder under Article 99(1) — 10 years;· robbery under Article 192(3) — 8 years;
a final sentence of 18 years, or a maximum of 20 years, may be imposed.
Part 4. Especially Serious Crimes Punishable by up to 20 Years or Life Imprisonment
🔹 If a sanction provides for imprisonment of up to 20 years, the maximum final sentence may reach up to 25 years, taking into account cumulation.
🔹 If the aggregate includes a crime punishable by life imprisonment, the final sentence shall be life imprisonment, regardless of other punishments imposed.
🔹 Exception: if, along with an especially serious crime, a fine is imposed for a criminal misdemeanor, absorption applies.
Example:· aggravated murder (Article 99(2) CC — life imprisonment);· and a minor misdemeanor — illegal possession of a hunting firearm (fine);
final outcome: life imprisonment without an additional fine.
Part 5. Additional Punishments
🔹 Additional punishments may:· be attached to the principal punishment;· be added in whole or in part;· not exceed statutory maximum limits (see Article 44 CC, e.g., deprivation of the right to hold certain positions — not more than 10 years).
Example:· imprisonment + prohibition to engage in certain activities;· 3 years + 4 years → maximum 10 years.
Part 6. Aggregate Established After the Sentence
🔹 The court may recalculate the final sentence if another crime committed earlier is discovered after sentencing.
🔹 The already served term shall be credited (analogous to Article 73 of the Criminal Code of the Russian Federation).
Practice:· a person is convicted of robbery;· later, an episode of theft committed before the judgment is revealed;· the court revises the sentence, combines the punishments, and credits the time already served.
🔸 Related Legal Provisions
1. Criminal Code of the Republic of Kazakhstan:
- Article 46 — Types of punishment;
- Article 59 — Aggregate of criminal offenses;
- Article 60 — Sentencing in cases of recidivism;
- Article 71 — Credit for punishment served.
2. Criminal Procedure Code of the Republic of Kazakhstan:
- Article 618 — Amendment of a sentence;
- Article 621 — Enforcement of a sentence.
3. Code of Administrative Offenses:
- not applied directly, but important for distinguishing crimes from misdemeanors.
🔸 International Standards
Issues of sentencing for an aggregate of criminal offenses are also examined in the context of:
· International Covenant on Civil and Political Rights, Article 14 — the principle of fairness of punishment;· European Court of Human Rights, Articles 6 and 7 — protection against excessive punishment and double jeopardy (ne bis in idem).
🔸 Conclusion
Article 58 of the Criminal Code of the Republic of Kazakhstan plays a key role in ensuring fairness and individualization of punishment. It allows courts to:
· mitigate punishment for similar offenses;· impose harsher punishment in cases of recidivism or serious crimes;· credit punishment already served when previously undiscovered offenses are identified.
Attention!
Law and Law Law Law draws your attention to the fact that this document is basic and does not always meet the requirements of a particular situation. Our lawyers are ready to assist you in legal advice, drawing up any legal document suitable for your situation.
For more information, please contact a Lawyer / Attorney by phone: +7 (708) 971-78-58; +7 (700) 978 5755, +7 (700) 978 5085.
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