NORMATIVE RESOLUTION OF THE SUPREME COURT OF THE REPUBLIC OF KAZAKHSTAN

of December 25, 2006 No. 11

About qualification of not momentariness and set of criminal offenses

For the purpose of development of uniformity in application of regulations of the penal statute about qualification of not momentariness and set of criminal offenses the plenary session of the Supreme Court of the Republic of Kazakhstan decides:

1. The correct application of the penal statute provides protection against insubstantial accusation and condemnation of citizens, and also appointment as the defendant of punishment fair, proportional to deeds. Therefore in case of several criminal offenses made by the same person it is necessary to find out circumstances, necessary for the correct application of the penal statute, and to qualify deeds taking into account provisions of articles 12 and 13 of the Criminal Code of Kazakhstan (further - UK) which contain determinations of the continued criminal offense, not momentariness of criminal offenses, real and ideal set of criminal offenses.

2. Not momentariness assumes making by the same person of several criminal offenses provided by the same Article or the same part of Article of the Special part of UK.

The criminal offense is not recognized committed repeatedly if person was condemned for earlier made criminal offense, or is exempted from criminal liability on the bases, the established law.

The crime and criminal offense do not form among themselves not momentariness.

In case of qualification of act on the basis of not momentariness or recognition of not momentariness of crimes according to Item 1) part one of article 54 UK the circumstance aggravating criminal liability and punishment of the guilty person should recognize that the crime is recognized committed repeatedly if it took place earlier as the ended identical crime, and attempt at it, soispolnitelstvo or partnership in this crime.

3. If not momentariness in the criminal precept of law is specified as the qualifying sign, then making by the same person of several identical criminal offenses, is subject to qualification in general under the relevant article (part of Article the) of UK providing responsibility for not momentariness of making of this criminal offense.

When making several criminal offenses provided by the different parts of the same article of the Criminal Code providing the different qualifying signs, these acts in general are subject to qualification only by that part of Article which establishes more stiff punishment and covers the qualifying signs. In such cases the qualifying signs of criminal offense established concerning the acts specified in other parts of this Article of the penal statute are subject to imputation and shall be specified in sentence.

Not momentariness is formed only identical criminal offense. Therefore making of several homogeneous criminal offenses cannot be recognized not momentariness of criminal offenses and is subject to qualification as set of criminal offenses. For example, committing by person of theft and robbery attracts qualification of its acts on set of articles 188 and 191 UK without the qualifying sign "not momentariness".

4. It is necessary to distinguish not momentariness of criminal offenses from the continued criminal offenses. Making by the same person of two and more criminal actions similar among themselves on method of making and object which are characterized by single intention and combined by the single purpose in material structures and the identical come effects, does not form not momentariness. In such cases in general it is necessary to recognize all deeds as the single continued criminal offense and to qualify under one article or part of the article of the Criminal Code which provides responsibility for making of this criminal offense.

If in the period of the continued criminal offense the changes establishing more strict liability for this act, then all episodes of the continued criminal offense are made to the penal statute qualifications as a unit criminal offense under the new law are subject if at least one of episodes was made during operation of the law in the new edition.

In case of making by the same person in the period of the continued criminal offense of other criminal offense which signs are not covered by disposition of the article of the Criminal Code providing responsibility for the continued criminal offense (for example, during malicious evasion from payment of funds for content of children theft is committed), its actions are subject to qualification on set of criminal offenses under the relevant article providing responsibility for the continued criminal offense and under the article of the Criminal Code providing responsibility for other criminal offense.

In case of committing by person in the period of the continued criminal offense provided by one part of the article of the Criminal Code, other criminal offense provided by other part of that article of the Criminal Code which signs are not covered by disposition of part of the article of the Criminal Code providing responsibility for the continued criminal offense (for example, during illegal storage for the purpose of sale of drugs in large size numerous sale of its part is made), its actions are subject to qualification as regards the article of the Criminal Code which establishes more stiff punishment. At the same time signs of all commited by person acts shall be imputed accusation and are specified in sentence.

5. In case of application of the penal statute it is necessary to consider that set of criminal offenses is subdivided on real and ideal. Real set of criminal offenses is formed by making by one person of two and criminally liabler acts, each of which contains the certain structure of criminal offense provided by different Articles (parts of Article) of the Special part of UK. In case of ideal set one act of the guilty person contains signs at least two different structures of the criminal offenses provided by two and more articles or parts of the article of the Criminal Code, and all deeds in general are not covered completely by any of these regulations of the penal statute.

6. If the guilty person was condemned or exempted for committed one criminal offenses from liability on the bases provided by the penal statute, then these criminal offenses cannot enter set with other criminal offenses about which case is considered. This circumstance can be considered in case of assignment of punishment.

7. As set of criminal offenses it is also necessary to qualify committing by person of several criminal offenses, one of which fall under operation of one article (part of Article) providing the qualifying sign - not momentariness of making of criminal offense, and other criminal offenses fall under operation of other articles of the Criminal Code. In such cases, several acts forming not momentariness need to be qualified by that part of the article of the Criminal Code which provides this qualifying sign of these criminal offenses, and other actions, responsibility for which making is provided by other articles of the Criminal Code - under the relevant articles of the Criminal Code.

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