RESOLUTION OF THE CONSTITUTIONAL COUNCIL OF THE REPUBLIC OF KAZAKHSTAN

of August 2, 2000 No. 17/2

About idea of Akmola regional court of recognition of unconstitutional article 8 of the Law of the Republic of Kazakhstan "About enforcement of the Criminal Code of Kazakhstan" of July 16, 1997

The constitutional Council of the Republic of Kazakhstan as a part of the Acting Chairman of the Constitutional Council Akuyev N. I., members of council Esenzhanov A., Kotov A. K., Omarkhanova K. A. and Shopina V. D., with participation of the senior assistant of state and legal department of Administration of the President of the Republic of Kazakhstan Nugmanov T. E., considered in open session idea of Akmola regional court of recognition of unconstitutional article 8 of the Law of the Republic of Kazakhstan of July 16, 1997 "About enforcement of the Criminal Code of Kazakhstan".

Having studied the available materials, the expert opinion of Baltabayev K. Zh. the head of the department of the criminal law and process of Eurasian state university of L. N. Gumilev, having heard the message of the speaker Esenzhanov A., the Constitutional Council established:

In the Constitutional Council of the Republic of Kazakhstan idea of Akmola regional court of recognition of unconstitutional article 8 of the Law of the Republic of Kazakhstan of July 16, 1997 "About enforcement of the Criminal Code of Kazakhstan" on July 3, 2000 arrived.

Follows from representation that in production of Akmola regional court there is criminal case on Vasinev D. V. accusation under Article 179, of part 2, to Items and), b), c), d) the Criminal Code of Kazakhstan, providing responsibility for the robbery committed by group of persons by previous concert, repeatedly with penetration into the room and using the objects used as weapon. This case was accepted to production on protest of the prosecutor of Esilsky district of Akmola area on sentence of district court. In protest of the prosecutor it is specified that, according to article 8 of the Law of the Republic of Kazakhstan of July 16, 1997 "About enforcement of the Criminal Code of Kazakhstan", actions of the defendant shall be qualified under Article 179, of part 3, of Item of) the Criminal Code of Kazakhstan, providing responsibility for the robbery which is commited by person earlier two and more times the offender for plunder or robbery.

Article 8 of the Law of the Republic of Kazakhstan of July 16, 1997 "About enforcement of the Criminal Code of Kazakhstan" states:

"The provision fixed in item 4 of the Note to article 175 of the Criminal Code of Kazakhstan extends to the persons who earlier made any of crimes, provided by Articles 63 (gangsterism), 76 (theft), 76-1 (robbery), 76-2 (robbery), 76-3 (fraud), 76-4 (plunder of alien property by assignment or waste or by abuse of official position), 76-7 (racketing), 203 (plunder of firearms, ammunition or explosives), 205-2 (plunder of radioactive materials), 213-1 (plunder of drugs) the Criminal code of the Kazakh SSR approved by the Law of the Kazakh SSR of July 22, 1959 "About approval of the Criminal code of the Kazakh SSR".

According to item 4 of the Note to article 175 of the Criminal Code of Kazakhstan, "person previously convicted for plunder or racketing, in Articles of this Chapter, and also person having criminal record for one or several crimes provided by Articles 175-181, 248, of 255, of the 260th of this Code is recognized other Articles of this Code".

Carrying out comparative analysis of the above-named regulations of the existing Criminal Code of Kazakhstan with similar regulations of the Criminal code of the Kazakh SSR accepted on July 22, 1959 the subject of the address believes that application through article 8 of the considered Law of the qualifying sign, in this case, making of robbery by person, earlier two or more times the offender for plunder or racketing, stipulated in Item is inadmissible) parts 3 of Article 179 and similar Items of other Articles of Chapter of "Property offense" of the Criminal Code of Kazakhstan. At the same time the following arguments are given.

The criminal code of the Kazakh SSR of July 22, 1959 actions of the persons who committed two and more plunders or racketings or having two and more criminal records for crimes for profit (irrespective of their quantity), were qualified by sign "repeatedly". In the existing Criminal Code of Kazakhstan the qualifying sign "frequency" is replaced with the qualifying sign "not momentariness" and, except for responsibility for fraud, penalty is commuted.

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