of December 25, 2007 No. 8
About application by courts of the legislation on recurrence of crimes
For the purpose of ensuring the correct and uniform application of the penal legislation about the determination of type of recurrence and consequence in law connected with recurrence, the plenary session of the Supreme Court of the Republic of Kazakhstan DECIDES:
1. According to article 14 of the Criminal Code of Kazakhstan (further - UK) recurrence of crimes committing by person of serious crime is recognized if earlier this person was condemned to imprisonment for making of serious crime. Dangerous recurrence of crimes committing by person is recognized: serious crime if earlier this person was twice condemned to imprisonment for making of serious crime or it was condemned for especially serious crime; especially serious crime if earlier it was condemned to imprisonment for heavy or especially serious crime.
2. Consideration of question of availability at the defendant of recurrence of crimes and adoption of the relevant decision is not the right, but obligation of court therefore in all cases when there are bases provided by the law, the court shall give in descriptive and motivation part of sentence the corresponding motives and the bases with indication of not removed and unspent convictions, weight of the previous and again committed crimes, and in substantive provisions of sentence to state the decision on recognition of the corresponding type of recurrence of crimes with reference to the corresponding Item and part of article 14 UK.
If the court, having brought in motivation part of sentence of the basis for recognition of recurrence, in substantive provisions of sentence did not specify the decision on recognition in actions of the defendant of the corresponding type of recurrence, it is necessary to consider that court the recurrence of crimes is not recognized as this sentence.
3. Recognition of person on the previous sentence especially dangerous recidivist according to article 23-1 of the Criminal code of the Kazakh SSR (further - UK Kaz. SSR), and recognition or non-recognition by the previous sentences at the defendant of recurrence of crimes based on article 14 UK is equal does not exempt court from obligation when considering the case about new crime again to consider question of availability of recurrence of crimes, its type and to make the relevant motivated decision.
4. In case of recognition of recurrence and determination of its type it is necessary to find out carefully the circumstances concerning former criminal records of each of defendants. In particular, are subject to examination: age of the defendant at the time of making of crimes, category of crimes for which the defendant was condemned earlier punishment type which was determined by the court verdict whether the penalty imposed under sentence was actually served, whether took place replacement appointed under sentence of punishment other punishment and in this connection, when and on what bases the convict was exempted from serving sentence whether former criminal records were removed or extinguished.
5. According to Item 4) of part one of Article 113 and Item 2) parts one of Article 204 of the Code of penal procedure of the Republic of Kazakhstan (further - the Code of Criminal Procedure), obliging to establish and prove the circumstances influencing degree and nature of responsibility of the suspect criminal prosecution authorities shall specify in the resolution on qualification of acts of the suspect and in the indictment on making by the suspect of criminal offense in case of the corresponding recurrence and to confirm it by attaching to the criminal case file of copies of sentences about its former outstanding and not removed criminal records with indication of date of their introduction in legal force and if sentences were changed, then and copies of resolutions of higher degrees of jurisdiction, and also data on release from punishment, on removal of criminal records on the previous sentences. On criminal records based on sentences of other states availability in case papers of official certificates of them suffices. Lack of instructions on the bases of recognition of recurrence of crimes in the resolution on attraction as the suspect or of the indictment is obstacle for recognition of recurrence of crimes by court in case of the resolution of sentence.
During the main legal proceedings the prosecutor of the rules of part five of article 340 Code of Criminal Procedure having the right with observance by creation of the new indictment to add accusation with specifying about making by the person accused of crime in case of the corresponding recurrence.
In case of absence in the criminal case file of sufficient data about former criminal records of the defendant courts should request them from the party of accusation. In the absence of the specified materials and impossibility of their obtaining recognition at the defendant of recurrence of crimes is inadmissible about what courts shall specify in sentence.
In case of provision of materials about former criminal records of person in Appeal Court they cannot be taken into account and are recognized inadmissible about what it is specified in the appeal resolution.
6. According to part three of article 14 UK of criminal record for the crimes which are commited by person aged before achievement of 18 years by it in case of recognition of recurrence are not considered. In this regard courts in case of research of the circumstances connected with condemnation of person in the past shall in necessary cases have not only substantive provisions of sentence, but also its complete text for the purpose of determination whether the defendant minor was when making of the crimes specified in sentence.
7. According to part one of article 79 UK person is recognized having criminal record from the date of the introduction of conviction in legal force therefore in case of committing by person of new crime to the introduction of the previous sentence in legal force the criminal record on the previous sentence in case of determination of type of recurrence is not considered.
8. According to part three of article 14 UK the removed or extinguished criminal records in case of recognition of recurrence are not considered. In this regard it is necessary to check whether repayment periods of the former criminal records which are subject to accounting in case of the solution of question of recurrence expired and to estimate them in strict accordance with the provisions specified in article 79 UK.
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