Sentencing in Cases of Recidivism and Dangerous Recidivism of Crimes

🔷 1. General Characteristics of Article 59 of the Criminal Code of the Republic of Kazakhstan

Article 59 establishes the principles of individualization of punishment in the presence of recidivism or dangerous recidivism of crimes. Unlike Article 60 of the Criminal Code of the Republic of Kazakhstan, which regulates the procedural mechanism for sentencing in cases of recidivism, Article 59 focuses on the factors that the court is obliged to consider when choosing and justifying the punishment.

🔹 The main objective of this provision is to ensure a balance between:

· the severity of punishment in cases of repeated criminal offenses;· fairness and proportionality, taking into account the specific circumstances of the case.

🔷 2. Concept and Types of Recidivism

🔹 Recidivism of crimes

According to Article 13 of the Criminal Code of the Republic of Kazakhstan, recidivism is the commission of a new intentional crime by a person who has an outstanding or unexpunged conviction for a previously committed intentional crime.

🔹 Dangerous recidivism

Defined in paragraph 11 of Article 3 of the Criminal Code of the Republic of Kazakhstan and manifested by the commission of a new intentional crime by a person who has previously been convicted two or more times for crimes of medium gravity, serious crimes, or especially serious crimes.

🔸 A criminal conviction is a mandatory legal condition for recognizing recidivism, unlike, for example, repetition of crimes (Article 11 of the Criminal Code of the Republic of Kazakhstan).

🔷 3. Structured Commentary on the Article

🔹 3.1. Factors Considered When Imposing Punishment

📌 1. Number of previously committed crimes

– The number of crimes for which the person has been convicted;– Its influence on classification as recidivism (once) or dangerous recidivism (two or more times).

📌 2. Nature of the crimes

– Whether the offenses are homogeneous (for example, theft and robbery);– Which legal interests they are directed against (the individual, property, public safety, etc.).

📌 3. Degree of public danger

– Crimes of minor gravity, medium gravity, serious, or especially serious nature;– Whether violence or weapons were used, whether harm to health was caused, etc.

📌 4. Reasons for the ineffectiveness of the previous punishment

– Repeated commission of a crime indicates the offender’s failure to reform;– The court considers which measures were previously applied (suspended sentence, fine, imprisonment) and why they failed to achieve their corrective purpose.

📌 5. Nature and degree of danger of the new crime

– If the new crime is more serious, the court has the right to impose a harsher punishment;– If it is less serious, a more flexible approach may be applied.

🔹 3.2. Judicial Practice

Example 1 (simple recidivism):A person was convicted of theft (Article 188 of the Criminal Code) and, after serving the sentence, committed a similar crime again. The court took recidivism into account and imposed a punishment not lower than the average limit of the sanction.

Example 2 (dangerous recidivism):A citizen had previously been convicted twice of serious crimes—robbery and intentional infliction of grievous bodily harm. He subsequently committed robbery again.Having recognized dangerous recidivism, the court imposed 12 years of imprisonment (with the maximum sanction being up to 15 years), with isolation in a maximum-security correctional facility.

🔷 4. Related Legal Provisions

🔹 Criminal Code of the Republic of Kazakhstan:

· Article 13 — Concept of recidivism;· Article 60 — Sentencing in cases of recidivism;· Article 55 — Mitigating circumstances;· Article 56 — Aggravating circumstances;· Article 46 — Types and terms of punishment;· Article 48 — Imprisonment as a type of punishment.

🔹 Criminal Procedure Code of the Republic of Kazakhstan:

· Articles 24 and 25 — Principles of fairness and individualization of criminal liability;· Article 631 — Imposition of punishment by the court.

🔷 5. International Standards

🔹 International Covenant on Civil and Political Rights (ICCPR):

· Article 14(5) — The right to have one’s conviction and sentence reviewed by a higher tribunal;· Article 7 — Prohibition of cruel, inhuman, or degrading punishment;· Implies the principle of proportionality — punishment must be proportionate.

🔹 Case-law of the European Court of Human Rights (ECHR):

· M. v. Germany (2010): The ECHR emphasized the need to take into account individual characteristics of the offender in cases of repeated convictions;· Standards of “reasonable severity” of punishment and corrective impact are applicable.

🔷 6. Conclusion

Article 59 of the Criminal Code of the Republic of Kazakhstan is an evaluative provision aimed both at humanizing and strengthening criminal liability in cases of systematic violations of the law.

The court is obliged not merely to apply recidivism mechanically as an aggravating circumstance, but to substantiate its decision by taking into account a wide range of factors:

✅ prior convictions;✅ the nature of the offenses;✅ the ineffectiveness of previous punishment;✅ the new level of public danger.

This ensures the individualization and proportionality of criminal repression.

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