of May 11, 2001 No. 5/2
About check of constitutionality of article 59 of the Criminal Code of Kazakhstan according to the appeal of the Ural city court of the West Kazakhstan region
The constitutional Council of the Republic of Kazakhstan as a part of the chairman Hitrin Yu. A., members of council of Akuyev N. I., Busurmanova Zh. D., Esenzhanov A., Kotov A. K. and Shopina V. D. with participation:
chairman of board on criminal cases of the Supreme Court of the Republic of Kazakhstan Yurchenko R. N.;
vice-Minister of Justice of the Republic of Kazakhstan Kotlov A. N.;
head of department of the Prosecutor General's Office of the Republic of Kazakhstan Kyyukova K. N.,
considered in open session the appeal of the Ural city court of the West Kazakhstan region about check of constitutionality of article 59 of the Criminal Code of Kazakhstan.
Having studied the provided materials, having heard the speaker - the member of the Constitutional Council Busurmanov Zh. D., performance of participants of meeting and the expert - the vice rector of Academy of financial police, Candidate of Law Sciences Rakhimzhanova G. K., the Constitutional Council of the Republic of Kazakhstan established:
In the Constitutional Council of the Republic of Kazakhstan the appeal of the Ural city court about recognition of unconstitutional article 59 of the Criminal Code of Kazakhstan arrived on April 11, 2001 (further - UK).
Follows from the address that the court verdict of Uralsk of November 8, 2000 the citizen Lemeshev Yu. Yu., previously convicted for numerous theft on part one and the Item of part two of article 175 UK, it was found guilty of open plunder of alien property using violence, not life-threatening and health of the victim, and it is sentenced on the Items "and" and "b" of part two of article 178 UK to 4 years of imprisonment with confiscation of property in corrective labor colony strictly of the mode. This sentence is left by the resolution of judicial board on criminal cases of the West Kazakhstan regional court of December 13, 2000 without change.
On protest of the Attorney-General of the Republic of Kazakhstan the judicial board on criminal cases of the Supreme Court of the Republic of Kazakhstan in supervising procedure cancelled the called sentence and the resolution with the direction of case on new trial. The supervising instance determined that the Trial Court in case of assignment of punishment does not consider the rules provided by part two of article 59 UK. In the supervising resolution it is specified that the dangerous recurrence of crimes qualified on two signs is seen in actions of the defendant: "using violence, not life-threatening" and "repeatedly" (the Items "and" and "b" of part two of article 178 UK) therefore it should impose penalty at least two thirds of the maximum term of deprivation of freedom provided by part two of article 59 UK that is at least 4 years 8 months.
The Ural city court, having suspended production on this case, addressed to the Constitutional Council of the Republic of Kazakhstan with idea of recognition of unconstitutional article 59 UK as it considers that the specified Article infringes at constitutional right of citizens for judicial protection, in advance predetermining type and the amount of punishment in case of recurrence of crimes, without the specific facts of the case and the identity of the guilty person.
Having studied the provided materials according to this address, the Constitutional Council proceeds from the following.
1. The right of everyone to judicial protection of the rights and freedoms is the major constitutional guarantee meaning that any man and citizen has the right to take a legal action behind protection and recovery of the violated rights and freedoms. The realization of this right is enabled on basis and according to the procedure, established by the law (the resolution of the Constitutional Council N7/2 of March 29, 1999). The right to judicial protection belongs to procedural law and is used by person as the main remedy of the violated its rights and freedoms. It promotes approval of justice, legality in society and real security of the basic substantive rights and human freedoms. Any restriction of the citizen in the right to judicial protection is not allowed and is violation of the law.
2. In part one of article 59 UK the list of circumstances which the court without fail shall consider in case of assignment of punishment in case of recurrence of crimes is given. Are carried to them: quantity, nature and degree of public danger of earlier committed crimes, circumstances owing to which corrective impact of the previous punishment was insufficient, and also nature and degree of public danger of again committed crimes. The listed requirements of the law give to court the chance to differentiate punishment taking into account all data on the committed crime and the identity of the guilty person.
The legislator provides limits which the court shall observe in part two of article 59 UK, imposing penalty in case of each of recurrence types. At the same time, the recurrence is more dangerous, the minimum term of the penalty imposed to person is higher: in case of recurrence of crimes the term and the amount of punishment cannot be lower than a half, in case of dangerous recurrence - at least two thirds, in case of especially dangerous recurrence of crimes - at least three quarters of the maximum term and the size of the most severe looking of the punishment prescribed for the committed crime.
In part three of article 59 UK two exceptions to the rules of assignment of punishment in case of any kind of recurrence in case of which regulations of part one and the second article 59 UK are not effective are established.
The first exception is when the criminal record of person is the qualifying sign of the committed crime, that is the fact of recurrence is already provided by the legislator when designing the sanction of Article therefore in case of assignment of punishment it shall not be considered. In this case penalty can be imposed as within the minimum term in case of establishment of recurrence, dangerous recurrence and especially dangerous recurrence, and in smaller size if the court finds possible it.
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