NORMATIVE RESOLUTION OF THE SUPREME COURT OF THE REPUBLIC OF KAZAKHSTAN

of April 30, 1999 No. 1

About respect of legality by courts in case of criminal sentencing

List of amending documents

Having discussed court practice to destination to persons of criminal penalty, guilty of making of crimes, and in connection with change of the penal legislation of the Republic of Kazakhstan regulating procedure for purpose of criminal penalties, the Plenum of the Supreme Court of the Republic of Kazakhstan DECIDES:

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 crime execution and will subject to criminal penalty differently as according to the court verdict, to draw the attention of courts that each criminal case, irrespective of nature and weight of the committed crime, office and public, the person accused provisions, shall be permitted in strict accordance with the law. Nothing can be acknowledged justifying legality violation. In case of criminal sentencing courts should observe strictly the general beginnings of assignment of punishment specified in article 52 UK and also to consider category of weight of crime of which making the defendant is found guilty, availability of recurrence and its type, crime execution stage, extent of participation of the defendant in case of crime execution by the group of persons organized by group or criminal society, value of its actions for goal achievement of crime and influence on nature and the extent of the done or possible harm whether the cumulative offenses, availability commuting and aggravating responsibility and penalty of circumstances take place whether there are bases for purpose of milder pinishment, than it is provided for this crime, or for conditional condemnation. Courts also should consider gender and age of defendants, meaning that the penal statute provides features of criminal sentencing to persons who committed crimes at minor age, to men 65 years, and also to women are more senior.

2. Draw the attention of courts to need of obligatory discussion and application of the severe measures of punishment provided by the law to the persons who committed crimes as a part of organized groups or criminal societies, found guilty of making of corruption crimes and also previously convicted, not the person interested to become on the way of correction.

In case of determination of degree of public danger of the committed crime courts should proceed as from requirements of article 10 UK regulating procedure for determination of weight of crimes and from set of all circumstances under which specific criminal action was committed (fault form, motives, method, circumstances and stage of crime execution, weight of the come effects, degree and nature of participation in crime execution of each of defendants, etc.).

3. Courts shall comprehensively, fully and objectively to research data on the identity of the defendant, meaning their essential value 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 of the defendant. Having found out marital status of the defendant, courts shall according to part 3 of article 52 UK in case of assignment of punishment consider influence of the imposed penalty on living conditions of his family or persons which are in its dependence.

3-1. Courts should mean what according to part five of article 53 UK if the sanction of the penal statute according to which person is found guilty, provides different (alternative) types of punishments, in the presence of attenuating circumstances, stipulated in Item д) parts one of article 53 UK, imprisonment for crimes of small and average weight is not appointed. At the same time this provision is applied irrespective of availability in the matter of the circumstances aggravating criminal liability and punishment and recurrence, dangerous or especially dangerous recurrence of crimes.

In case of the competition of the provisions of the law, stipulated in Item д) parts one of article 53 UK and part two of article 59 UK, priority have requirements of the first regulation. At the same time the judgment in this part shall be motivated in descriptive and motivation part of the court verdict with reference to Item д) parts one of article 53 UK. The reference to article 55 UK in this case is not required.

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 crime or characterizing the defendant is committed (abuse of alcoholic drinks, abuse of regulations of behavior in society, the bad relation to family, work, study, etc.) can be considered in case of assignment of punishment, but cannot be acknowledged aggravating responsibility and punishment.

According to the Item "m" of part one of article 54 UK court the crime execution having the right not to acknowledge depending on nature of crime in state of intoxication the circumstance aggravating responsibility and punishment. Courts in case of the solution of this question need to consider whether 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 crime execution if it is connected with involvement by his adult assisting offender in the use of alcoholic drinks, the narcotic or other stupefying means.

When this or that 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 as one of essential elements of offense, it shall not be considered in case of assignment of punishment for making of this crime as the circumstance commuting or aggravating responsibility and penalty.

5. Crime execution by person who earlier committed any crime cannot be considered as the circumstance aggravating responsibility and punishment if concerning the first crime prescriptive limit of criminal prosecution expired, the criminal record is removed or extinguished in the procedure established by the law or the law eliminates criminal punishability of the act made in the past and also when person was exempted from criminal liability and punishment on the bases provided by the General part of UK.

6. If the sanction of the law under which person is found guilty, provides different (alternative) types of punishments, courts should discuss question of possibility of purpose of less strict of them, meaning that according to part two of article 52 UK more severe looking of punishment from among provided for the committed crime is appointed only in that case when its less severe looking is not able to provide goal achievement of punishment or when the law specially provides purpose of the most severe looking of punishment and to motivate the made decision in sentence.

7. According to article 55 UK assignment of punishment is lower than the lowest limit set by the relevant article (part of Article) for making of this crime, or purpose of milder pinishment, not specified in the sanction of Article (part of Article) of UK according to which the crime is qualified or non-use of the additional punishment prescribed as obligatory it is allowed only in case of establishment of the exceptional circumstances significantly reducing degree of public danger of crime, and also with active assistance of the participant of collective crime to disclosure committed by group of crimes. Exceptional circumstances both separate attenuating circumstances, and their set can be recognized. The court shall specify in sentence what circumstances established on case it recognizes exclusive and in combination with what data on the identity of the guilty person takes them as basis in case of application of article 55 UK.

In case of application of milder pinishment, than it is provided by the law, to person guilty of making of several crimes, it is necessary to impose at first penalty using article 55 UK for one or for each of the committed crimes, and then to determine final punishment by rules of article 58 UK.

Making of heavy or especially serious crime in itself in the presence of exceptional circumstances is not obstacle for appointment to the guilty person of punishment below the lowest limit. In case of assignment of punishment using article 55 UK in case of recurrence, dangerous recurrence and especially dangerous recurrence of crimes of the rule of part two of article 59 UK are not applied.

The amount of punishment determined by court using article 55 UK anyway cannot be below the minimum limit established by the law for this type of punishment.

8. In case of discussion of question of assignment of punishment by the minor courts shall take into account that only those types of criminal penalty which are specified in article 79 UK can be applied to them, and their terms and the sizes cannot exceed the limits set by the specified Article. It is also necessary to consider in addition the circumstances specified in articles 80 and 81 UK and to discuss in each case taking into account the facts of the case and the identity of the minor defendant possibility of application to it enforcement powers of educational impact, stipulated in Article 82 UK.

8-1. When considering the case concerning conditionally condemned minor who in the period of probation period committed crimes of small or average weight again the court in case of assignment of punishment shall discuss question of possibility of repeated application of conditional condemnation.

If the court applies conditional condemnation repeatedly, then determination of final punishment on cumulative sentences according to article 60 UK is not required as the previous and last sentences are in that case executed independently.

9. Courts need to consider that conditional condemnation, stipulated in Article 63 UK can be, as a rule, applied to persons who committed crimes of small or average weight in the past by not offender. Application of conditional condemnation is only allowed to certain participants of crimes of other weight when the supporting role of these persons is established and also if the data characterizing the identity of the guilty person, and circumstance in case of whom the crime is committed give the grounds to find possible application of rules of article 63 UK in case of assignment of punishment. At the same time it is also necessary to mean that the penal statute does not connect application of conditional condemnation with category of crimes, and only limits application of article 63 UK to persons in whose actions dangerous or especially dangerous recurrence of crimes is acknowledged.

The court can apply conditional condemnation only when to the guilty person that type of punishment which is listed regarding 1 article 63 UK is appointed (corrective works, restrictions on military service, imprisonment). In case of assignment of punishment using article 63 UK primary punishment is considered conditional, and the imposed additional punishments are subject to execution after the introduction of sentence in legal force.

In case of the resolution on conditional condemnation the court shall explain to the convict, his legal representatives about effects, stipulated in Article 64 UK possible for it, in case of non-execution of obligations, making of administrative offenses, new crimes.

9-1. In case of application to person of conditional condemnation can be assigned to it fulfillment of duties, provided by part 5-1 of article 63 UK. At the same time courts should mean that according to requirements of part three of article 5 UK the specified obligations cannot be assigned for the crimes committed before enforcement of the new law establishing these obligations (till February 5, 2011).

In case of conditional condemnation assignment on person fulfillment of duties, provided by part 5-1 of article 63 UK, is not obligation, but the right of court.

10. Concerning persons who made the acts containing signs of the crimes which are not constituting big public danger, courts should discuss question of possibility of their correction and re-education without application of criminal penalty and in the presence of the bases to exempt such persons from criminal liability on the bases specified in Articles 65 - 68 UK. Conclusion of court about possibility of correction of person without application of measures of criminal penalty shall be based on comprehensive, complete and objective investigation of the facts of the case and data on the identity of the defendant.

11. Courts should mean that according to part four of article 13 UK in case of recognition of recurrence the removed and extinguished criminal records, and also criminal records for the crimes which are commited by person aged up to 18 years are not considered. Along with it in case of recognition of recurrence on Item and) to part two, Items and) or b) parts three of article 13 UK the basis are those not removed or unspent convictions which are connected with condemnation of person to imprisonment for intentional crimes.

Earlier condemned to imprisonment it is necessary to consider person to whom in the past according to the court verdict which took legal effect custodial sanction was imposed: being subject to serving in correctional facility including when person did not serve this sentence (for example, evaded from its serving, it was exempted from serving sentence based on article 73 UK), except cases when person was exempted from serving sentence according to article 75 UK in connection with conviction lapse of time; conditionally (article 40 UK of the Kazakh SSR or article 63 Criminal Code of Kazakhstan); using delay of execution of sentence (article 41-1 UK of the Kazakh SSR, 72 and 74 Criminal Codes of Kazakhstan), it is conditional with obligatory labor involvement (article 23-2 UK of the Kazakh SSR).

With respect thereto in case of recognition of recurrence the former not removed and unspent conviction of person and in that case when imprisonment was appointed conditionally (using article 40 UK of the Kazakh SSR or the article 63 Criminal Code of Kazakhstan) or using delay of execution of sentence (article 41-1 UK of the Kazakh SSR or the articles 72 and 74 Criminal Code of Kazakhstan) shall be considered or it is conditional with obligatory labor involvement (article 23-2 UK of the Kazakh SSR) if this person committed new crime during respectively probation period or during delay of execution of sentence, or in case of cancellation of conditional condemnation or delay and the direction of the convict in the relevant organization for the serving appointed under sentence of imprisonment.

Cannot be considered as persons condemned to imprisonment which the penalty imposed according to the court verdict (corrective works, restriction of freedom, etc.) on the bases provided by part 4 of Article 43 and part 2 of article 45 UK was replaced with imprisonment.

12. If on the previous sentence person was condemned using article 63 UK and during probation period committed new crime, the court in case of discussion of question of recognition of recurrence shall consider requirements of part four of article 64 UK. At the same time the criminal record of person to imprisonment using article 63 UK can be considered in case of determination of recurrence in that case when the court in case of assignment of punishment for new crime makes the decision on cancellation of conditional condemnation on the previous sentence. If the court based on part four of article 64 UK, comes to conclusion about possibility of preserving conditional condemnation on the previous sentence, the former criminal record of person to imprisonment using article 63 UK in case of determination of recurrence is not considered.

13. Courts should observe strictly the limits of terms of punishment set for persons who committed crime in case of the corresponding recurrence, in case of unfinished crime and also in case of assignment of punishment on cumulative offenses or in case of cumulative sentences.

At the same time it must be kept in mind that according to part 3 of article 5 UK of the rule of part two of article 59 UK are not applied to persons who were condemned for the crimes forming recurrence, dangerous recurrence or especially dangerous recurrence committed before enforcement of the Criminal Code of Kazakhstan (till January 1, 1998). If the recurrence is formed by criminal records of person for the crimes committed as before enforcement of the Criminal Code of Kazakhstan, and after that rules of part two of the article 59 Criminal Code of Kazakhstan are applied only taking into account criminal records for the crimes committed after January 1, 1998. In case of unfinished crime even in the presence of the corresponding recurrence the maximum amount of punishments cannot exceed the terms and the sizes specified in article 56 UK.

14. Capital punishment - execution as exceptional measure of punishment is established for the terrorist crimes integrated to death of people, and also for especially serious crimes committed in wartime, with provision sentenced the rights to petition for pardon.

Courts shall consider that according to part 2 of article 49 UK application of capital punishment is not allowed to women, persons who committed crimes aged up to 18 years to the men who reached by the time of adjudgement of 65 years and also according to part 4 of article 56 UK to persons condemned for unfinished crime.

Capital punishment cannot be designated also to persons whom the court according to part 5 of article 69 UK did not find it possible to exempt from criminal liability after prescriptive limits. In the cases provided by part 4 of article 75 UK in case of execution of sentence after the expiration of prescriptive limits capital punishment shall be replaced with imprisonment for 25 years or for life. In case of discussion of question of imposition of the death penalty courts shall mean that rules of part two of article 373 Code of Criminal Procedure that all questions are resolved by a majority vote judges, are not applied. According to part four of article 373 Code of Criminal Procedure capital punishment can be appointed only according to the unanimous decision of the judges who are part of court.

Application of capital punishment in all cases shall be motivated in sentence on the basis of the established circumstances of the committed crime and data, with exhaustive completeness characterizing the defendant including its mental condition.

Execution of the punishment in the form of capital punishment according to part four of article 49 UK is made not earlier than after one year from the moment of the introduction of sentence in legal force based on the documents listed in part four of Article 165 of the Penitentiary code of the Republic of Kazakhstan.

15. Crime execution in group of persons, in group of persons by previous concert involves more stiff punishment therefore courts should determine correctly type of partnership and assisting offenders.

16. Courts should mean that committing by person of several crimes, especially intentional, testifies, as a rule, to the increased public danger of the guilty person. With respect thereto exact fulfillment of requirements of articles 58 and 60 UK is one of conditions of determination of lawful, reasonable and just punishment to such persons.

17. When making one crime with the qualifying signs specified in different parts of the same article of the Criminal Code, act should be qualified by one part of Article prescribing more stiff punishment for making of this crime with indication of all qualifying signs. In the same procedure by one part of Article of the Special part of the Criminal code actions of person in case of not momentariness of the crimes provided by part 5 of article 11 UK shall be qualified.

18. In case of assignment of punishment on cumulative offenses courts should consider that the principles of absorption of less stiff punishment provided by the law or complete or partial addition of punishments shall be motivated with more stiff punishment in sentence. In case of assignment of punishment on set of three and more crimes the court has the right to apply at the same time both principles, having applied the principle of absorption of one less stiff punishment by other more stiff punishment appointed for crimes of small weight and then to apply the principle of partial or complete addition of this punishment with the punishments appointed for the crimes of average weight, heavy or especially heavy entering set.

In case of use of the principle of absorption of one less stiff punishment by other more stiff punishment courts should mean that degree of severity of punishments is determined by that sequence in what they are specified in article 39 UK. In case of appointment for each crime of the same type of punishment to the most strict of them entering set that punishment is considered, the term or the size of which is more. If for the crimes entering set are appointed identical by the form and to the amount of punishment, determination of final punishment by absorption of one punishment to others is admissible only in cases when they are appointed in the maximum limits of sanctions of the relevant articles of the penal statute.

19. Courts shall consider that in case of application of part 6 of article 58 UK final punishment on cumulative offenses cannot be below the penalty imposed on the first sentence as in such cases in case of absorption or addition of punishments it is necessary to proceed from the amount of all penalty imposed on the first sentence, but not from its unexpired part.

If after adjudgement it is determined that the convict is guilty also of making of other crimes, one of which are made to, and others after adjudgement, punishment is determined by the second sentence using both Articles 58, and article 60 UK: in the beginning punishment is determined by cumulative offenses, made before removal of the first sentence, then rules of part 6 of article 58 UK then punishment is determined by cumulative offenses, made after removal of the first sentence are applied, and final punishment is determined by cumulative sentences.

20. In case of assignment of punishment on cumulative sentences courts need to establish and specify in sentence type and the size of unexpired part of punishment on the previous sentence which based on article 60 UK is subject to complete or partial accession to the penalty imposed on new sentence. Unexpired part of punishment on the previous sentence is considered: in case of conditional condemnation, and also in case of delay of execution of serving sentence on the bases, stipulated in Article 72, part 2 Articles 74, or according to the procedure, the stipulated in Article 452 Codes of Criminal Procedure, in case of application of part 3 Articles 73, all term of punishment, except for the term of detention in connection with detention, with election of measure of restraint in the form of arrest or execution of the punishment or stays in medical institution in connection with application of enforcement powers of medical nature; in case of parole from punishment on the bases, stipulated in Article 70 UK - part of punishment from which serving the convict was actually conditionally ahead of schedule exempted; in case of condemnation to restriction of freedom, and also to accomplishment of social jobs - part of obligatory term of work and time during which the convict evades from work.

21. In case of assignment of punishment on cumulative sentences by partial accession of unexpired part of punishment on the previous sentence if final penalty not is imposed within the maximum term established for this type of punishment, the court shall state motives of the made decision in sentence. In case of partial accession of unexpired part of punishment on the previous sentence final punishment in any case shall be by the size more as the penalty imposed for again committed crime and unexpired part of punishment and on the previous sentence.

22. In case of committing by person of new crime during probation period the court in case of discussion of question of assignment of punishment on cumulative sentences shall consider requirements of part four of article 64 UK. At the same time rules of article 60 UK are applied in that case when the court in case of assignment of punishment for new crime makes the decision on cancellation of conditional condemnation on the previous sentence. If the court when considering the case comes to conclusion about possibility of preserving conditional condemnation on the previous sentence, penalty is imposed only for new crime.

23. In case of complete or partial addition of punishments on cumulative offenses or on cumulative sentences courts should observe procedure for determination of terms of punishment in case of their addition, stipulated in Clause 61 UK. In sense of the specified Article additional punishment, unexpired on the previous sentence, fully or partially joins final primary punishment or fully or partially it develops with the additional punishment of the same type imposed on new sentence within the term established for this type of additional punishment. The punishments specified in part two of article 61 UK are performed independently.

If on the first sentence person is condemned to imprisonment, corrective works or to other punishment which is subject to execution, and on the second sentence penalty using article 63 UK is imposed, the court in such cases in case of addition of punishments shall specify in sentence that they are subject to execution independently. At the same time the probation period under sentence on which conditional condemnation is applied is estimated from the moment of its introduction in legal force irrespective of in what organization punishment on the first sentence is performed.

24. In case of making by the convict of new crime during delay of execution of the punishment on the previous sentence the court according to article 60 UK shall attach to the punishment appointed for new crime fully or partially unexpired punishment on the previous sentence. At the same time it is not required to issue the decree on cancellation of delay of execution of the punishment on the first sentence. When the new crime is committed after the expiration of delay of serving sentence and the introduction in legal force of the court order about the direction of the convict according to part three of article 72 UK in the relevant organization for serving sentence, court, having determined punishment for new crime, shall apply rules of assignment of punishment on cumulative sentences, stipulated in Article 60 UK. If by the time of the resolution of sentence on res nova the question of release of the convict from serving sentence or of the direction it for serving sentence in the relevant organization by court as that is required by the law, is not solved, the court imposes penalty only for new crime. In such cases the issue of execution of sentence in the presence of other unexecuted sentences can be resolved according to the procedure, provided by articles 453-455 Codes of Criminal Procedure.

25. The correct combination of the primary and additional punishment promotes consecutive implementation of the principle of its individualization, more successful goal achievement of punishment in this connection courts on each case in case of the resolution of sentence should discuss question of need of application of additional punishments, especially to persons found guilty of making of heavy, especially heavy, and also corruption crimes.

When the sanction of the penal statute provides possibility of application or non-use of additional punishment, courts shall discuss question of its appointment and specify motives of the made decision in motivation part of sentence. Non-use of additional punishment in such cases does not require specifying about it in substantive provisions of sentence. In case of condemnation of the guilty person under Articles of the penal statute according to which additional punishment is obligatory the court can not apply it only in the presence of the conditions provided in article 55 UK with obligatory specifying in sentence of motives of the made decision and with reference to article 55 UK in substantive provisions of sentence.

26. Draw the attention of courts that additional punishment in the form of penalty, confiscations of property can be appointed only when the disposition of the article of the Criminal Code on which the defendant is found guilty, provides them as additional punishment. Deprivation of the right to hold certain positions or to be engaged in certain activities, deprivation of special, military or honorary title, the class rank, diplomatic rank, qualification class and state awards as additional punishment can be appointed and when it is not provided in quality of punishment by Article of the Special part of UK under which the crime is qualified. In this case the decision on purpose of additional punishment in substantive provisions of sentence shall contain the reference respectively to Article 41 or on article 50 UK. In case of condemnation for making of heavy or especially serious crime along with adjudgement the court shall discuss question of introduction based on part 2 of article 50 UK of representation to the President of the Republic of Kazakhstan about deprivation of the convict of the state awards or the appropriated President of the Republic of Kazakhstan of special, military or honorary title, the class rank, diplomatic rank, qualification class.

Additional punishments are imposed in limits, stipulated in Clause the law on which the defendant is found guilty. If additional punishment exchanges based on article 41 or 50 UK , its term cannot exceed the limits established by the law for this type of punishment.

27. According to requirements of part 2 of article 51 UK, the provided by the sanction of the article of the Criminal Code according to which the crime is qualified, additional punishment in the form of confiscation of property can be imposed for making of this crime only in that case when in case of its making mercenary motives are established. Courts should mean that in sense of article 79 UK confiscation of property cannot be applied to persons who committed crime at minor age. In case of application of confiscation of property its size shall be accurately stipulated in sentence, and confiscation can be turned only on that property which belonged to the defendant or was its share in common joint property with other persons. Confiscation cannot be turned on the property specified in the list attached to the Penitentiary code of the Republic of Kazakhstan.

If the sanction of Article of the Special part of UK provides confiscation of property as obligatory additional punishment, however in actions of person who committed this crime there are no mercenary motives, or the crime is commited by person at minor age or conditional condemnation takes place, taking into account provisions of the General part of UK additional punishment in the form of confiscation of property is not applied. This decision shall be motivated in descriptive and motivation part of the court verdict with the reference respectively to Article 51, 63 (part the fourth) or 79 UK. The reference to article 55 UK in these cases is not required.

28. According to article 41 UK in each case of committing by person of the crime connected with fulfillment of duties on position or occupation certain activities, the court shall, considering nature of the committed crime, to discuss question of deprivation of the defendant of the right to hold certain positions or to be engaged in certain activities. In case of purpose of this punishment in substantive provisions of sentence of position or type of activity shall be specified specifically. Inadmissibly, in particular, to deprive of the defendant of the right to work in this or that industry or in any organizations, the organizations without certain circle of positions which he has no right to occupy. That circumstance that by the time of adjudgement the defendant did not hold position any more or was not engaged in activities with which crime execution was connected, is not obstacle for application of the called additional punishment. Deprivation of the right to manage vehicles can be appointed by court as additional punishment according to the sanction of the penal statute regardless of the fact that this person had no this right at all or was already deprived of such right according to the procedure of administrative punishment.

29. By hearing of cases in appeal, cassation and supervising procedure courts should check observance of the general beginnings of assignment of punishment in case of the resolution of sentence, compliance of the chosen punishment of weight of crime and the identity of the convict, correctness of application of regulations of the penal statute in case of assignment of punishment, and also observance of the regulations of the criminal procedure law regulating procedure for statement in sentence of the decision on measure of punishment and the specific facts of the case which at the same time were considered. In case of detection of the mistakes and violations of the law allowed by Trial Courts in case of assignment of punishment, higher degrees of jurisdiction shall take the measures provided by the law to their elimination.

Having admitted wrong conclusions of court about amount charges, to the form of fault or form of partnership of the convict in crime execution, about availability aggravating responsibility and punishment of circumstances and bringing with respect thereto corresponding changes in sentence (for example, excepting episode of accusation or one or several aggravating circumstances, recognizing person as the helper, but not the collaborator of crime, seeing in its actions signs of preparation for crime or attempts at it, but not completed crime), the court of appeal, cassation or supervising instance shall discuss question of opportunity or need of decrease in punishment to the convict and to provide motives of the made decision in the resolution.

Draw the attention of courts that without change of qualification of crime or amount of accusation decrease in the penalty imposed by Trial Court within the sanction of the penal statute according to articles 417 and 446-12 Codes of Criminal Procedure can take place only when it by the form or to the size is unfair owing to excessive severity or excessive softness. At the same time only those circumstances which are established when considering the case shall serve as the basis for mitigation of punishment or release of the convict from its serving and demonstrate that in case of adjudgement to the convict excessively severe penalty was imposed. The circumstances which arose after adjudgement and also nature of behavior of the convict in term of imprisonment in itself cannot attract change of sentence, but can be considered in the presence of other bases of reconsideration of the case in appeal, cassation or supervising procedure.

30. When considering the case in cassation or supervising procedure on the claim of the convict, his defender or legal representative, and also on protest or claims of the party of accusation in which the question of excessive softness of punishment, court was not put, canceling sentence on other bases having no right to draw conclusions about excessive softness of the penalty imposed according to the court verdict. Court of cassation or supervising instance, having recognized the penalty imposed by the court verdict unfair owing to its excessive softness having no right to strengthen him even in the presence about it argument in the protest or claims of the party of accusation, except as specified, provided for court of cassation instance by part three of article 446-17 Code of Criminal Procedure. In case of recognition by higher degrees of jurisdiction of arguments of claims or protest about excessive softness of punishment proved sentence is subject to cancellation with the direction of case on new judicial review with indication of in the resolution as the basis of cancellation of sentence excessive softness of punishment.

Having determined that when considering the case in cassation procedure illegal diversion or mitigation of punishment to the convict was allowed, the Supervisory Court according to part nine of article 467 Code of Criminal Procedure has the right to repeal the cassation resolution and to uphold with change or without change the court verdict of the first instance, the appeal resolution. According to part ten of article 467 Code of Criminal Procedure if necessary to strengthen punishment or to apply the penal statute about more serious crime, than it is specified in sentence, the Supervisory Court cancels sentence and the subsequent court resolutions with the direction of case on new judicial review.

31. If the Trial Court in case of assignment of punishment on cumulative offenses applies the principle of partial addition of the penalties imposed for each crime, the court of cassation or supervising instance has no right to apply the principle of complete addition of punishments even when these degrees of jurisdiction commute penalty for one or several crimes entering set.

If use of the principle of absorption of one punishment to others is allowed by Trial Court in case of assignment of punishment on cumulative sentences in violation of the law or because of impossibility of accession of unexpired part of punishment according to rules of part two of article 60 UK, the court of cassation or supervising instance in case of mitigation of punishment on the last sentence has the right to attach in parts or in full unexpired punishment on the previous sentence provided that final punishment will not exceed the amount of the penalty imposed under sentence taking into account the changes made to it by the subsequent instances.

When retraining act from one Article on several Articles of the penal statute providing responsibility for less serious crime when it does not worsen situation of the convict and does not violate its right of defense, court of cassation or supervising instance, resolving issue of punishment, applies rules of article 58 UK. At the same time final punishment shall not be more strict than the penalty imposed by sentence.

32. In case the guilty person makes two or more receipts which form not momentariness of crimes, but by Trial Court are mistakenly qualified under two and more Articles (parts of Article), having given the correct legal evaluation of act under one Article and having mistakenly qualified some acts under other Article providing responsibility for more serious crime, court of cassation or supervising instance, having requalified the corresponding criminal acts on article about less serious crime having the right to determine within its sanction more stiff punishment, than that which was appointed on it by Trial Court without exceeding, however, at the same time the final amount of the penalty imposed by sentence.

The court of cassation or supervising instance has no right to impose additional punishment if it was not appointed sentence including in case of change of qualification of crime on the article of the law providing its obligatory application.

33. Declare invalid the resolution of the Plenum of the Supreme Court of the Republic of Kazakhstan of June 24, 1993, No. 2 "About respect of legality by courts in case of assignment of punishment" with the changes made to it by the resolution of plenum of December 23, 1994, No. 9.

Chairman of the Supreme Court Republic of Kazakhstan

M. Narikbayev

Secretary Plenuma, judge Supreme Court of the Republic of Kazakhstan

A. Zhukenov

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