Retroactive Effect of Criminal Law

Article 6 of the Criminal Code of the Republic of Kazakhstan (CC RK) regulates the temporal effect of criminal law, establishing principles of retroactivity for certain categories of laws. Let us examine the provisions of this article in detail:

1. Retroactive Effect of a Law Improving the Legal Position of an Individual

According to the first part of Article 6 of the CC RK, a law that decriminalizes an act, mitigates liability or punishment, or otherwise improves the legal position of a person who has committed a criminal offense has retroactive effect. This means that such a law applies to individuals who committed the respective act before its enactment, including those who:

• are serving a sentence;

• have already served their sentence but still have an outstanding or unexpunged criminal record.

This principle is enshrined in paragraph 5 of Article 77 of the Constitution of the Republic of Kazakhstan, which states that laws that establish or increase liability, impose new obligations on citizens, or otherwise worsen their legal position do not have retroactive effect. If, after the commission of an offense, liability for it is abolished or mitigated by law, the new law shall apply.

2. Reduction of Sentence in Case of Mitigated Criminal Liability

In accordance with the second part of Article 6 of the CC RK, if a new criminal law mitigates the liability for an act for which a person is serving a sentence, the imposed sentence shall be reduced within the limits of the sanction provided by the new law. This means that:

• if the maximum or minimum sentence is reduced;

• if alternative, more lenient types of punishment are introduced;

the sentence shall be reconsidered in favor of mitigation in accordance with the new provisions.

3. Absence of Retroactive Effect for Laws Worsening the Legal Position of an Individual

The third part of Article 6 of the CC RK establishes that a law which:

• establishes the criminality of an act;

• increases liability or punishment;

• otherwise worsens the legal position of a person who has committed an act;

does not have retroactive effect. This means that such laws apply only to acts committed after their entry into force.

Examples from Judicial Practice

In the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan No. 15 dated December 22, 2016, "On Judicial Practice in the Application of Article 6 of the Criminal Code of the Republic of Kazakhstan," it is clarified that when a new law mitigating punishment is adopted, courts are obliged to review sentences imposed under previously existing stricter laws.

Connection with Other Normative Acts

The principles of the retroactive effect of the law are also reflected in Article 43 of the Law of the Republic of Kazakhstan "On Legal Acts," which states that normative legal acts improving the legal position of citizens may have retroactive effect if explicitly provided by the act itself or by the act introducing it into force.

Thus, Article 6 of the CC RK ensures the protection of the rights of individuals who have committed criminal offenses by applying a more lenient law if adopted after the commission of the act and prevents the deterioration of their legal position when stricter laws are enacted.

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