of June 25, 2015 No. 4
About some questions of criminal sentencing
For the purpose of the correct and uniform application of the regulations of the existing penal and criminal procedure legislation of the Republic of Kazakhstan regulating questions of assignment of punishment, the plenary session of the Supreme Court of the Republic of Kazakhstan
1. Proceeding from regulations of the Constitution of the Republic of Kazakhstan on equality of all before the law and court and, considering that nobody can be found guilty of making of criminal offense and will subject to criminal penalty differently as according to the court verdict which took legal effect, to draw the attention of courts that each criminal case, irrespective of nature and weight of committed criminal offense, official and social standing of the defendant, shall be solved in strict accordance with the law. In case of criminal sentencing courts should follow strictly the general rules of assignment of punishment specified in article 52 of the Criminal Code of Kazakhstan (further - UK), and also to consider category of weight of criminal offense, availability of recurrence and its type, stage of making of criminal offense, extent of participation of the defendant when making criminal offense, value of its actions for goal achievement of criminal offense and influence on nature and the extent of the done or possible harm whether set of criminal offenses, availability commuting and aggravating responsibility and penalty of circumstances, the bases for purpose of milder pinishment takes place, than is provided for this criminal offense.
2. Draw the attention of courts to need of obligatory discussion and application of the severe measures of punishment provided by the law to persons, found guilty of making of criminal offenses as a part of criminal groups, corruption, terrorist, extremist crimes, and also crimes against sexual integrity of minors and the previously convicted, not the person interested to become on the way of correction.
In case of determination of degree of public danger of committed criminal offense courts should consider its weight, stipulated in Article 11 UK, and set of circumstances under which it was made (making method, fault form, motives and the purposes, act completion stage, degree of public danger of the come effects, etc.).
3. Courts shall comprehensively, fully and objectively to research data on the identity of the defendant, meaning their significant effect for determination of type and the amount of punishment. In particular, it is necessary to find out the state of health, working capacity, the relation to work, training, criminal record and marital status of the defendant. It is necessary for courts according to part three of article 52 UK in case of assignment of punishment to consider influence of the imposed penalty on living conditions of family of the defendant and persons which are in its dependence.
4. The list aggravating responsibility and punishment of circumstances, specified in part one of article 54 UK, is exhaustive in this connection other circumstances established by court under which the criminal offense or characterizing the defendant is made (abuse of alcoholic drinks, abuse of regulations of behavior in the public place, the relation to family, work, study, etc.) can be considered in case of assignment of punishment, but cannot be acknowledged by the circumstances aggravating responsibility and punishment.
According to Item 12) parts one of article 54 UK court the crime execution having the right not to acknowledge criminal offense depending on nature in state of intoxication the circumstance aggravating responsibility and punishment. Courts in case of the solution of this question need to consider whether making of criminal action was in character connected with intoxication of the guilty person, and also conditions under which person appeared in such condition. In particular, it cannot be considered as the state of intoxication of the minor aggravating responsibility and punishment at the time of making of criminal offense if it is connected with involvement by his adult accomplice of criminal offense in the use of alcoholic drinks, narcotic or toxicomaniac substances.
In cases when the circumstance, stipulated in Article 53 or article 54 UK, is specified in disposition of Article of the Special part of the Criminal Code of Kazakhstan (further - the Special part of UK) as one of the qualifying essential elements of offense, it cannot be acknowledged as court as commuting or aggravating responsibility and penalty by circumstance for making of this criminal offense. Also especially active role in making of criminal offense cannot be recognized as aggravating circumstance if person is recognized as the organizer of act.
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