NORMATIVE RESOLUTION OF THE SUPREME COURT OF THE REPUBLIC OF KAZAKHSTAN

of October 19, 2001 No. 15

About some questions of assignment of punishment in the form of imprisonment

Having discussed results of generalization of court practice of assignment of punishment in the form of imprisonment, the plenary session of the Supreme Court of the Republic of Kazakhstan notes that in case of application of this type of punishment courts make serious mistakes.

Courts do not always observe the general beginnings of assignment of punishment provided by Art. 52 of UK that leads to violation of the principle of individualization of punishment. Unreasonable appointment of imprisonment in the presence of the bases for application of other less stiff punishment is allowed. Cases of application of unfairly soft measures of punishment to the persons who committed heavy and especially serious crimes or repeatedly judged and constituting the increased danger to society take place.

For the purpose of ensuring the correct and uniform permission of the questions arising in court practice in case of assignment of punishment in the form of imprisonment, plenary meeting Decides:

1. Draw the attention of courts to need of unconditional observance on each criminal case of the general beginnings of assignment of punishment established by Art. 52 of UK, meaning that unjust punishment owing to its excessive severity or softness does not promote punishment goal achievement.

2. Courts need to consider that custodial sanction as more severe looking of punishment from among the punishment types provided by the law, is appointed only in cases when correction of convicts and the prevention of making of new crimes is impossible in case of purpose of less severe looking of punishment. In case of purpose of imprisonment issues of its terms shall be resolved from the point of view of its sufficiency for punishment goal achievement. Application of measure of restraint in the form of arrest shall not be considered by courts in case of assignment of punishment and be the cause of obligatory application of imprisonment.

If the penal statute according to which person is found guilty along with imprisonment provides softer types of punishment, then courts in case of the resolution of sentence shall discuss question of assignment of punishment, not connected with imprisonment. Purpose of imprisonment in the presence of other less stiff punishment shall be motivated in sentence.

3. In case of the resolution of sentence concerning women, persons who committed crime aged up to eighteen years, the men who reached by the time of adjudgement of sixty-five-year age, courts need to consider the provided Art. of the Art. 48, 49 UK exceptions concerning terms of deprivation of freedom.

In case of decision making about custodial sanction concerning the expectant mothers and women having the child aged up to fourteen years and men alone raising juvenile children except convicts to imprisonment for the term of over five years for heavy and especially serious crimes against the personality, courts according to Art. 72 of UK shall discuss possibility of delay of serving sentence and give the corresponding motives in sentence.

4. In case of the solution of question of assignment of punishment by the minor courts shall take requirements of the Art. of Art. 80-82 of UK into account. In the cases provided by the law it is necessary to discuss question of release of minors from criminal liability and from punishment and application of measures of educational impact to them.

Imprisonment as the most severe looking of criminal penalty, can be appointed by the minor within the terms established by Art. 79 of UK. At the same time term of deprivation of freedom both for one crime, and on cumulative offenses and cumulative sentences cannot exceed 10 years. Imprisonment over the specified term up to 12 years by the minor can be appointed only for the murder committed in case of aggravating circumstances. In this case the term of deprivation of freedom appointed on cumulative offenses and cumulative sentences cannot be higher than 12 years. According to part seven of article 79 UK the minor who committed crime of small weight or for the first time committed crime of average weight, imprisonment is not appointed.

5. According to the p. 2 of Art. 379 of the Code of Criminal Procedure courts in case of assignment of punishment shall specify motives of purpose of type, the size or term of punishment to person found guilty of crime execution in sentence. At the same time courts shall not be limited only to transfer of the circumstances influencing assignment of punishment but also to specify how they reflect nature and degree of public danger of crime and data on the personality who made it.

In case of determination of nature and degree of public danger courts shall proceed from the social importance of the public relations (subject to encroachment) protected by the law which were caused effects of deeds, categories of crime, stage of implementation of criminal intent, type of partnership, method, time and the place of crime execution. Courts in all cases shall estimate comprehensively and objectively all set of the circumstances commuting and aggravating responsibility and penalty, the specific information about the identity of the convict with obligatory specifying and reduction in sentence of motives of the made decision on punishment. Formal transfer of the specified circumstances without disclosure of content of each of them is inadmissible.

6. Courts shall research carefully all circumstances connected with question of recurrence of crimes, meaning that they influence legal evaluation of deeds, the correct determination of term of punishment, type of the mode of corrective labor colony.

On each case it is necessary to research the materials concerning former criminal records. At the same time courts should take into account that the criminal records removed or extinguished according to the Art. of the Art. 77, 86 UK (Art. 49 of UK Kaz. SSR), are not considered. Criminal records for the crimes which are commited by person aged up to eighteen years are not considered in case of establishment of recurrence of crime owing to the p. 4 of Art. 13 of UK. For determination of type of recurrence the stage of crime execution and type of partnership does not matter.

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