Commentary on Article 6. Retroactive Effect of the Criminal Law of the Criminal Code of the Republic of Kazakhstan

- A law that eliminates the criminality or punishability of an act, mitigates liability or punishment, or otherwise improves the position of a person who has committed a criminal offense shall have retroactive effect, that is, it shall apply to persons who committed the relevant act before such law entered into force, including persons serving a sentence or those who have served their sentence but still have a criminal record.

- If a new criminal law mitigates the punishability of an act for which a person is serving a sentence, the sentence imposed shall be reduced within the limits of the sanction provided for by the newly enacted criminal law.

- A law that establishes the criminality or punishability of an act, increases liability or punishment, or otherwise worsens the position of a person who has committed such act shall have no retroactive effect.

The article under consideration provides for an exception to the rule governing the temporal application of criminal law, as stipulated in Article 5 of the Criminal Code.

The retroactive effect of criminal law, established by Article 6 of the Criminal Code, means the extension of the effect of a newly adopted law to persons who committed the relevant act before that law entered into force, including persons serving a sentence or those who have served their sentence but still have a criminal record.

The substance of this provision is based on the general rules applicable to all offenses, as set out in subparagraph 5) of paragraph 3 of Article 77 of the Constitution of the Republic of Kazakhstan, according to which: “Laws establishing or increasing liability, imposing new obligations on citizens, or worsening their position shall have no retroactive effect. If, after the commission of an offense, liability for it is abolished or mitigated by law, the new law shall apply.”

Proceeding from the principle of humanism, on which the provision concerning the retroactive effect of criminal law is based, law enforcement authorities must, in all cases, apply the law (the old or the new one) that is most favorable to the guilty person (convicted person).

The criminal law provision concerning the retroactive effect of a law also follows from the provisions of the International Covenant on Civil and Political Rights of December 16, 1966, Article 15 of which states: “No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed. If, subsequent to the commission of the offence, provision is made by law for the imposition of a lighter penalty, the offender shall benefit thereby.” The said Covenant was ratified by Law of the Republic of Kazakhstan No. 91-III dated November 28, 2005, and entered into force for the Republic of Kazakhstan on April 24, 2006.

Pursuant to Article 6 of the Criminal Code, a law shall have retroactive effect in the following cases: firstly, where it eliminates the criminality and punishability of an act; secondly, where it mitigates liability or punishment; and thirdly, where it otherwise improves the position of a person who has committed a criminal offense. A similar provision is contained in Article 43 of the Law “On Legal Acts.”

Paragraph 2 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated December 22, 2016, “On Judicial Practice in the Application of Article 6 of the Criminal Code of the Republic of Kazakhstan,” emphasizes that, when applying Article 6 of the Criminal Code, courts must strictly comply with the requirement that a law which eliminates the criminality or punishability of an act, mitigates liability or punishment, or otherwise improves the position of a person who has committed a criminal offense shall have retroactive effect, that is, it shall apply to persons who committed the relevant act before the law entered into force, including persons serving a sentence, as well as those who have served their sentence but still have a criminal record. A law that establishes the criminality or punishability of an act, increases liability or punishment, or otherwise worsens the position of a person who has committed such an act shall have no retroactive effect.

A law that eliminates the criminality or punishability of an act should be understood as a law that decriminalizes the act, meaning that liability for its commission is no longer provided for under the new criminal law. This may occur through the repeal of an article or part of an article of the Special Part of the Criminal Code, or through amendments to the wording of an article of the Criminal Code, as a result of which a particular act ceases to be recognized as unlawful conduct.

Paragraph 3 of the above-mentioned Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan states: “A law eliminating the criminality or punishability of an act shall be understood as a law by which a particular act previously recognized as a criminal offense is excluded from the category of criminal acts. This may occur through the complete exclusion of a particular provision from the Criminal Code.”

For example, by the Law of the Republic of Kazakhstan dated July 3, 2017, Articles 108 and 109, which provided for criminal liability for intentional infliction of minor bodily harm and battery, were excluded from the Criminal Code and transferred to the category of administrative offenses.

Decriminalization of an act may be carried out by amending the disposition of a provision of criminal law, while partial decriminalization of an act may be achieved by introducing or removing additional elements of the offense already contained in the disposition, as well as by amending provisions of the General Part of the Criminal Code.

When a new criminal law eliminates the criminality of an act (decriminalization of a criminal offense), a person convicted of such an act shall be deemed to have no criminal record, and the fact of their conviction shall not entail any criminal law consequences and shall not be taken into account when determining multiple offenses or recidivism in sentencing.

As a result of decriminalization of an act, all its legal consequences are annulled. In such a case, pursuant to the requirements of subparagraph 6) of part 1 of Article 35 of the Criminal Procedure Code, the proceedings in the case shall be terminated on these grounds regardless of the stage at which the case is pending; the criminal case shall be terminated due to the absence of the elements of a criminal offense in the act. The convicted person shall be released from punishment and deemed to have no criminal record.

Thus, pursuant to subparagraph 6) of part 1 of Article 35 of the Criminal Procedure Code, criminal proceedings shall be terminated if a law abolishing criminal liability for the committed act enters into force, or if the Constitutional Council of the Republic of Kazakhstan recognizes as unconstitutional a law or other regulatory legal act subject to application in the given criminal case, upon which the classification of the act as a criminal offense depends.

Such a criminal law applies to all persons whose criminal cases have not yet been initiated, whose cases are under investigation or being considered by courts, as well as to persons serving a sentence or those who have served their sentence but still have a criminal record. For example, during his employment as the director of the Yenisei plant, which manufactured spare parts for agricultural machinery, I. used knowingly false information about the quality of goods in advertising. Relying on this advertising, LLP “Iskra” purchased spare parts for agricultural machinery from the Yenisei plant at the beginning of the year to carry out harvesting operations. In September, during harvesting operations, the purchased spare parts failed to withstand the prescribed load due to their low quality. As a result, LLP “Iskra” was unable to harvest its crops on time and consequently incurred substantial losses. The investigative authorities refused to accept the application filed by LLP “Iskra” seeking to bring the director of the Yenisei plant to criminal liability, due to the absence of the elements of a criminal offense, since the actions that subsequently caused material damage had been committed by the convicted person during the period when the Criminal Code of the Republic of Kazakhstan of 2014 was in force, under which criminal liability for such an act was not предусмотрена. Accordingly, pursuant to the requirements of subparagraph 2) of part 1 of Article 35 of the Criminal Procedure Code, the proceedings in the case shall be terminated due to the absence of the elements of a criminal offense in the person's actions.

Another example. By the judgment of the court of first instance, A. was found guilty of attempting to move goods across the customs border of the Republic of Kazakhstan on a large scale, bypassing customs control, and was convicted under part 3 of Article 24 and part 1 of Article 209 of the Criminal Code of 1997 (Article 234 of the Criminal Code of 2014). The appellate judicial panel of the regional court upheld the judgment of the court of first instance without changes. The Supervisory Judicial Panel for Criminal Cases of the Supreme Court of the Republic of Kazakhstan overturned the judgment of the court of first instance and the ruling of the appellate court, terminating the proceedings due to the absence of the elements of a crime in the convicted person's actions, on the following grounds.

The court of first instance delivered its guilty verdict against A. on July 8, 2010. At the same time, the court failed to take into account the fact that on June 30, 2010, the Law of the Republic of Kazakhstan “On Amendments and Additions to Certain Legislative Acts of the Republic of Kazakhstan on Issues of Customs Regulation and Taxation” had been adopted and entered into force on July 1, 2010. Under the amendments introduced by this Law to the Criminal Code of the Republic of Kazakhstan, acts provided for by Article 209 of the Criminal Code of 1997, involving economic smuggling across the customs borders between the Republic of Kazakhstan, the Russian Federation, and the Republic of Belarus, that is, within the Customs Union, ceased to constitute criminally punishable acts as of July 2010. Accordingly, by the time the criminal case against A. was considered at trial and the judgment was delivered by the court of first instance, the acts committed by him had been decriminalized.

Since, under the new criminal law in force at the time the criminal case was considered by the court, the acts committed by A. no longer contained the elements of any crime, the court of first instance, pursuant to the requirements of subparagraph 2) of part 1 of Article 37 of the Criminal Procedure Code of the Republic of Kazakhstan of 1997, was obliged to terminate the proceedings or deliver an acquittal due to the absence of the elements of a crime in the convicted person's actions.

On the basis of the foregoing, the supervisory instance of the Supreme Court of the Republic of Kazakhstan rightfully overturned the judicial acts issued in respect of A. and terminated the proceedings in the case on the above-mentioned exonerating ground. It should be noted that Article 234 of the Criminal Code was also amended and supplemented by the Laws of the Republic of Kazakhstan dated July 3, 2017, and December 26, 2017.

Furthermore, the criminality of an act may be eliminated in cases where the composition of a criminal offense is supplemented with a new mandatory element (consequence, method, motive, purpose, special subject), or where the amount defining “substantial damage” or “large amount” is changed.

A new law shall have retroactive effect as a law eliminating the criminality of an act if it excludes one of the alternative forms of criminal activity or removes one of the alternative socially dangerous consequences from material offenses.

Another manifestation of the retroactive effect of a law is the mitigation of punishment. As a rule, this is achieved by excluding a particular type of punishment from the system of penalties; reducing the minimum and/or maximum limits of punishment; replacing one type of punishment with another, more lenient type; introducing an alternative type of punishment; expanding the list of persons to whom the death penalty or life imprisonment may not be applied, or narrowing the grounds for applying these punishments; expanding the list of mitigating circumstances or narrowing the range of aggravating circumstances; excluding qualifying and especially qualifying elements; reducing the amount of deductions from the wages of convicted persons; changing the conditions for conditional early release from punishment in a manner more favorable to convicted persons; reducing the periods required for expungement of a criminal record, and so forth.

“A less severe law,” as stated in paragraph 2 of paragraph 3 of the above-mentioned Regulatory Resolution of the Supreme Court, “is a law that provides for a more lenient punishment and, where the type of punishment is the same, has a lower maximum term or amount of the sanction. Where the maximum amount of punishment is equal, the law with a more lenient minimum term or amount of punishment, or one providing for an alternative sanction, shall be recognized as the more lenient law.”

The provision that a more lenient law is one that improves the position of a person brought to criminal liability also applies to provisions concerning the recognition of recidivism, circumstances mitigating or aggravating criminal liability or punishment, limitation periods for criminal prosecution, conditional early release, and expungement or removal of a criminal record.

When applying the rules on the retroactive effect of criminal law, selective application of provisions that improve the position of a person brought to criminal liability, by simultaneously applying provisions of both the new and the old criminal law to the same issue, is not permitted. Only the provision that produces favorable legal consequences for that person shall be applied.

The greatest difficulties in applying the retroactive effect of criminal law arise in mixed cases, where it is difficult to give an unequivocal answer as to which criminal law is more lenient. For example, a new criminal law simultaneously reduces the minimum limit and increases the maximum limit of a sanction. In this case, the law reducing the minimum limit should be applied, while the maximum limit should not be taken into account. This is because taking the maximum limit into account would result in stricter criminal law consequences, including limitation periods, types of recidivism, periods for expungement of a criminal record, and so forth, since the classification of crimes into categories is based precisely on the maximum limit of the sanction. At the same time, the reduced minimum limit must be applied because it improves the position of the guilty person.

If, under a new criminal law, a qualifying element of the composition of a criminal offense is completely excluded from a statutory provision, the law shall have retroactive effect. However, where a qualifying element is excluded from one part of an article and introduced into another part of the same article, which provides for stricter sanctions, such new law shall not have retroactive effect. In this case, there is an overall increase in criminal liability and punishment for the act in question.

Problems in law enforcement practice also arise when not only individual provisions and sanctions of the Special Part of the Criminal Code are amended simultaneously, but also the principles governing their application and other provisions of the General Part of the Criminal Code. These include laws containing provisions of the General Part that do not establish the criminality and punishability of an act.

By the Law of the Republic of Kazakhstan dated December 28, 2016, a circumstance excluding the criminality of an act, namely counterintelligence measures, was introduced into Article 35 of the Criminal Code.

The institution of recidivism was revised. Under the new rules, only an unexpunged and unremoved criminal record for serious and especially serious crimes shall be taken into account when recognizing recidivism and dangerous recidivism, without taking into account criminal records for less serious crimes. In addition, such military punishments as restriction in military service and detention in a guardhouse were abolished.

It should be noted that Article 6 of the Criminal Code limits the application of a law having retroactive effect to the moment when a criminal record is expunged or removed, since from that moment all adverse consequences of conviction are eliminated. A review of a judgment is possible until the criminal record is expunged or removed.

If, at the time a new criminal law enters into force, there is a court judgment that has entered into legal force, the retroactive application of criminal law shall be carried out in accordance with the provisions of subparagraph 15) of Article 476 of the Criminal Procedure Code, within the procedure for execution of a judgment. In this case, issues concerning termination of the case, release from punishment or mitigation of punishment, reclassification of the act committed by the convicted person, reduction of the term of punishment, and recidivism shall be considered.

Thus, Article 476 of the Criminal Procedure Code provides that the court has jurisdiction to consider issues related to the execution of a judgment. Among the 22 issues subject to consideration under that article, subparagraph 15) concerns release from punishment or mitigation of punishment, reclassification of the act committed by the convicted person, reduction of the term of punishment, and recidivism as a result of the adoption of a criminal law having retroactive effect or abolishing criminal liability for the committed act, recognition by the Constitutional Council of the Republic of Kazakhstan of a law or other regulatory legal act applied by the court when delivering the judgment as unconstitutional, as well as an amnesty act (Article 6 of the Criminal Code). Pursuant to part 1 of Article 477 and part 3 of Article 478 of the Criminal Procedure Code, these issues shall be resolved by a district court or an equivalent court at the place where the judgment is being executed, or, in the absence of such a court, by a higher court, upon an application by the convicted person or a submission by the institution or body executing the sentence.

When considering issues related to the execution of a judgment, the court has the right to apply the retroactive effect of criminal law by changing the classification of the person's actions in accordance with an article of the new criminal law to a less serious criminal offense and reducing the punishment within the limits of the sanction of that article, as well as by not imposing an additional punishment. At the same time, the court is not entitled to review the court judgment with regard to the assessment of evidence, the resolution of a civil claim in criminal proceedings, or other issues not provided for in Article 476 of the Criminal Procedure Code.

In the event that a law eliminating the criminality or punishability of an act or decriminalizing an act is adopted, the court, when applying Article 6 of the Criminal Code, must resolve the issue of the civil claim in accordance with the procedure provided for in part 4 of Article 170 of the Criminal Procedure Code.

The rule concerning the retroactive effect of a new, more lenient criminal law also applies to persons who have been convicted and are serving their sentences, as well as to those who have served their sentences but still have a criminal record under a more severe criminal law that has ceased to be in force.

When applying the rules on the retroactive effect of criminal law to persons who have served their sentences, it should be borne in mind that if a new criminal law mitigates liability, eliminates the criminality or punishability of an act, but the punishment for that act has already been served or executed and the application of the new criminal law will not entail any legal consequences for the convicted person, the new law should not be applied. If a person has already served their sentence and their criminal record has not been expunged, and the application of the new law will entail legal consequences for the convicted person, such as reducing the period required for expungement of the criminal record or excluding recidivism, the new criminal law shall be applied.

A law that establishes the criminality or punishability of an act, increases liability or punishment, or otherwise worsens the position of a person who has committed a criminal offense shall have no retroactive effect (part 3 of Article 6 of the Criminal Code).

Paragraph 4 of Article 43 of the Law of the Republic of Kazakhstan “On Legal Acts” stipulates that legislative acts establishing or increasing liability, imposing new obligations on citizens, or worsening their position shall have no retroactive effect.

A law establishes the criminality of an act if, under that law, an action or omission that was not previously considered criminal is recognized as a crime. A law increases punishment if it raises the minimum or maximum limits of punishment, increases both limits simultaneously, or, without changing the amount of the principal punishment, includes an additional punishment in the sanction, and so forth. If an act committed by a person is transferred to the category of a more serious criminal offense or otherwise worsens the position of the person who committed the criminal offense, the new criminal law shall have no retroactive effect. A law otherwise worsens a person's position if it increases the periods required for expungement or removal of a criminal record, changes the period after which conditional early release from punishment becomes possible, and so forth.

If a new criminal law establishes the same sanction as the previous law and does not otherwise improve the position of a person who has committed a criminal offense, it shall have no retroactive effect and shall not be applied. In this case, the provisions of Article 5 of the Criminal Code shall apply, according to which the criminality and punishability of an act are determined by the law in force at the time the criminal offense was committed. A similar clarification is contained in paragraph 4 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan “On Judicial Practice in the Application of Article 6 of the Criminal Code of the Republic of Kazakhstan.”

Particular attention should be paid to the issue of the retroactive effect of the so-called “intermediate” law, which is in force during the period between the mitigation of the previous law and the subsequent tightening of the law. For example, at the time the crime was committed, the punishment prescribed for it was imprisonment for a term of up to 6 years; at the time the person was brought to criminal liability, the maximum term was up to 5 years; and at the time the judgment was delivered, it was up to 7 years. Proceeding from the principles of humanism and justice, in such a situation the “intermediate” law, as the most liberal law and the one that clearly improves the position of the person who committed the crime, should be applied.

This position is also shared by the Supreme Court of the Republic of Kazakhstan, as stated in paragraph 10 of the above-mentioned Regulatory Resolution, which provides: “In cases where the criminal law has been amended more than once between the date of commission of a criminal offense and the date of delivery of the judgment or judicial act of the appellate judicial instance, the criminal law most favorable to the person brought to criminal liability shall apply, including an intermediate law.”

In cases where the minimum limit of a sanction is increased while the maximum limit is reduced, this gives rise to certain practical difficulties and differing approaches. For example, under the old law, the minimum term of imprisonment is 2 years and the maximum term is 10 years. Under the new law, the minimum term has been increased to 4 years, while the maximum term has been reduced to 8 years. How should it be determined whether the punishment has been mitigated or made more severe? It should be proceeded from the fact that the severity of a law is determined by the upper, rather than the lower, limit of the sanction, since, based on the fundamental requirement that the position of the guilty person must be improved, under this approach a more severe punishment than that provided for by the new law cannot be imposed on that person. If necessary, an increase in the minimum limit of the sanction may be offset by imposing a punishment below the minimum limit or a different, more lenient type of punishment (Article 55 of the Criminal Code).

In certain cases, determining whether a new criminal law is more severe or more lenient depends on the approach taken to assessing the provisions of legislative acts belonging to other branches of law or other regulatory legal acts.

The resolution of this issue becomes particularly relevant in relation to blanket provisions, where the content of provisions of other branches of law determines the content of the objective elements and, in certain cases, the subject matter of the relevant elements of crimes. It appears that decriminalization of particular acts may be carried out not only by introducing corresponding amendments to criminal legislation, but also by repealing regulatory provisions belonging to other branches of law to which blanket provisions of criminal law refer, or by limiting the scope of criminal law regulation as a result of legislative recognition that a particular act does not constitute the degree of public danger characteristic of crimes and therefore entails administrative or other, less severe liability. Such an approach is consistent with the requirement of the Constitution of the Republic of Kazakhstan to give retroactive effect to any law that eliminates or mitigates liability or punishment (subparagraph 5) of paragraph 3 of Article 77 of the Constitution).

A criminal law shall be recognized as otherwise improving the position of a person who has committed a criminal offense if it mitigates the conditions of serving a sentence, expands the possibility of applying conditional early release, reduces limitation periods, and shortens the periods required for expungement or removal of a criminal record, and so forth.

Paragraph 3 of the above-mentioned Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan emphasizes that a law shall be recognized as otherwise improving the position of a person who has committed a criminal offense if it mitigates the rules for imposing punishment, the conditions for release from criminal liability or punishment, or reduces the periods required for expungement or removal of a criminal record.

In connection with the introduction of an alternative type of punishment in the form of a fine calculated as a multiple of the amount of the bribe into the sanctions of Articles 366 “Receiving a Bribe,” 367 “Giving a Bribe,” 368 “Mediation in Bribery,” and 252 “Commercial Bribery” of the Criminal Code, a question arises in law enforcement practice as to whether the introduction of a fine calculated as a multiple of the bribe amount as an alternative to imprisonment constitutes mitigation of the punishability of an act and whether it provides grounds for reviewing all judgments that have entered into legal force under the Criminal Code of 1997.

Both questions should be answered in the affirmative. The reasons are as follows. As an example, let us consider liability for repeated receipt of a bribe.

Thus, for repeated receipt of a bribe, under subparagraph “g” of part 4 of Article 311 of the Criminal Code of the Republic of Kazakhstan of 1997, the only punishment provided for was imprisonment for a term of seven to twelve years, with confiscation of property.

Under the Criminal Code of the Republic of Kazakhstan of 2014, liability for the above-mentioned crime is provided for in subparagraph 4) of part 3 of Article 366, the sanction of which provides for a fine in the amount of sixty to seventy times the amount of the bribe or imprisonment for a term of seven to twelve years, with confiscation of property and lifelong deprivation of the right to hold certain positions or engage in certain activities.

Subparagraph 5) of paragraph 5 of Article 77 of the Constitution of the Republic of Kazakhstan states: “Laws establishing or increasing liability, imposing new obligations on citizens, or worsening their position shall have no retroactive effect. If, after the commission of an offense, liability for it is abolished or mitigated by law, the new law shall apply.”

Proceeding from the principles of humanism and justice, on which the provision concerning the retroactive effect of criminal law is based, law enforcement authorities must, in all cases, apply the law (the old or the new one) that is most favorable to the guilty person (convicted person).

There is no doubt that one of the manifestations of the retroactive effect of a law is the mitigation of punishment, including through the introduction of an alternative type of punishment.

Pursuant to part 2 of Article 6 of the Criminal Code, if a new criminal law mitigates the punishability of an act for which a person is serving a sentence, the sentence imposed shall be reduced within the limits of the sanction provided for by the newly enacted criminal law.

The introduction into the sanction of Article 366 of the Criminal Code of an alternative punishment in the form of a fine calculated as a multiple of the amount of the bribe, alongside imprisonment, indicates that the punishment has been mitigated.

It should also be noted that the principles governing the imposition of punishment are embodied in all criminal law provisions regulating the punishability of criminal offenses and, above all, in the general principles of sentencing provided for in Article 52 of the Criminal Code.

The general principles of sentencing mean a set of rules which, when followed in each criminal case, enable the court, when delivering a guilty verdict, to ensure the selection of a fair measure of legal impact on the convicted person in accordance with the principles governing the imposition of punishment.

Article 52 of the Criminal Code establishes the general principles as follows: punishment shall be imposed by the court within the limits provided for by the relevant article of the Special Part of the Criminal Code (part 1); the provisions of the General Part of the Criminal Code must be observed; a more severe type of punishment among those provided for the committed crime shall be imposed only if a less severe type of punishment cannot ensure the achievement of the objectives of punishment (part 2); the court shall take into account the nature and degree of public danger of the crime and the identity of the guilty person, including circumstances mitigating and aggravating the punishment, as well as the impact of the punishment being determined on the rehabilitation of the convicted person and on the living conditions of their family or persons dependent on them (part 3).

Only the combined application of these general principles, according to the legislator's intention, can guarantee that the court imposes a lawful, justified, and fair punishment on the guilty person.

In turn, paragraph 6 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated June 25, 2015, “On Certain Issues of Imposing Criminal Punishment,” clarifies: “If the sanction of the article of the Criminal Code under which a person has been found guilty provides for alternative types of punishment, courts should consider the possibility of imposing the less severe one, bearing in mind that, in accordance with part two of Article 52 of the Criminal Code, a more severe type of punishment shall be imposed only where a less severe type cannot ensure the achievement of the objectives of punishment.

If, in accordance with the provisions of the General Part of the Criminal Code, none of the punishments provided for in the sanction of the relevant article of the Special Part of the Criminal Code may be imposed on a person, the court shall, without reference to part four of Article 55 of the Criminal Code, impose a more lenient type of punishment provided for in Article 40 or Article 81 of the Criminal Code. The reasoning behind the court's decision must be set out in the reasoning part of the judgment, with reference to the relevant provision of the General Part of the Criminal Code establishing the prohibition on applying a particular type of punishment.”

Paragraph 2 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated December 22, 2016, “On Judicial Practice in the Application of Article 6 of the Criminal Code of the Republic of Kazakhstan,” expressly states: “When applying Article 6 of the Criminal Code, courts must strictly comply with the requirement that a law which eliminates the criminality or punishability of an act, mitigates liability or punishment, or otherwise improves the position of a person who has committed a criminal offense shall have retroactive effect, that is, it shall apply to persons who committed the relevant act before the law entered into force, including persons serving a sentence, as well as those who have served their sentence but still have a criminal record. A law that establishes the criminality or punishability of an act, increases liability or punishment, or otherwise worsens the position of a person who has committed such an act shall have no retroactive effect.”

Moreover, paragraph 3 of this Regulatory Resolution of the Supreme Court states that: “Where the maximum amount of punishment is equal, the law with a more lenient minimum term or amount of punishment, or one providing for an alternative sanction, shall be recognized as the more lenient law.

Laws mitigating liability or punishment include legal provisions by which:

• the sanction of a provision of criminal law has been amended in the direction of mitigation;
• an alternative, more lenient type of punishment has been introduced into the sanction of an article;
• an additional punishment has been excluded from the sanction of an article.”

Thus, when considering the issue of the retroactive effect of criminal law, the court must be guided by subparagraph 5) of paragraph 3 of Article 77 of the Constitution of the Republic of Kazakhstan, the provisions of the General Part of the Criminal Code, in particular Articles 6, 39, and 52, as well as the provisions of the Regulatory Resolutions of the Supreme Court of the Republic of Kazakhstan “On Certain Issues of Imposing Criminal Punishment” and “On Judicial Practice in the Application of Article 6 of the Criminal Code of the Republic of Kazakhstan.”

Consequently, the courts had no legal grounds for refusing to review judgments in this category of cases.

Unfortunately, the courts acted otherwise, thereby violating the requirements of the law and the Regulatory Resolutions of the Supreme Court of the Republic of Kazakhstan.

Another case requiring the application of the provisions on the retroactive effect of criminal law involves the introduction by a new criminal law of special provisions establishing criminal liability for acts that, under the old criminal law, were classified not under a special provision but under a general provision. In this case, the act is not criminalized; rather, its legal assessment is clarified. Such a situation may result in either an improvement or a deterioration of the guilty person's position. The issue of applying criminal law in this case must be resolved by comparing the sanctions of the general and special provisions. The retroactive effect of criminal law may apply only where it is favorable to the guilty person.

From both theoretical and practical perspectives, considerable interest lies in resolving the issue of the retroactive effect of criminal law when punishment is imposed for an aggregate of crimes by absorbing a less severe punishment into a more severe one, where the conditions for serving the sentence for the more serious crime included in the aggregate have been mitigated by a new criminal law.

The court classified B.'s actions as an aggregate of crimes under part 4 of Article 366 of the Criminal Code and part 3 of Article 28, subparagraph 2) of part 4 of Article 189 of the Criminal Code. Under part 4 of Article 366 of the Criminal Code, B. was sentenced to 10 years of imprisonment, and under part 3 of Article 28 and subparagraph 2) of part 4 of Article 189 of the Criminal Code, to 8 years of imprisonment. Pursuant to part 3 of Article 58 of the Criminal Code, the final punishment for the aggregate of criminal offenses was determined by the court through absorption of the less severe punishment by the more severe punishment and amounted to 10 years of imprisonment.

Pursuant to the Law dated July 12, 2018, “On Amendments and Additions to Certain Legislative Acts of the Republic of Kazakhstan on Issues of Improving Criminal and Criminal Procedure Legislation and the Activities of Law Enforcement and Special State Bodies,” subparagraph 1) of part 5 of Article 46 of the Criminal Code was set out in a new wording. In accordance with this subparagraph, imprisonment in minimum-security institutions of the penal enforcement system shall be served by “... persons convicted of crimes provided for in Chapter 15 of this Code, provided that they have fully compensated for the damage caused by the crime” (Article 366 of the Criminal Code belongs to Chapter 15 of the Criminal Code). This provision is also confirmed by subparagraph 3) of part 5 of Article 46 of the Criminal Code.

B. fully compensated for the material damage caused by the offense provided for in part 4 of Article 366 of the Criminal Code. Consequently, B. belongs to the category of persons for whom imprisonment is to be served in minimum-security institutions of the penal enforcement system. However, the Tole Bi District Court of Turkestan Region and the subsequent higher judicial instances refused to grant attorney M.'s private appeal requesting that a minimum-security institution be designated for his client B. According to the court, serving imprisonment in a minimum-security institution of the penal enforcement system could not be designated for convicted person B. because the final punishment imposed on him was 10 years of imprisonment for the aggregate of criminal offenses provided for in part 4 of Article 366 of the Criminal Code and part 3 of Article 28, subparagraph 2) of part 4 of Article 189 of the Criminal Code.

Pursuant to subparagraph 2) of part 5 of Article 46 of the Criminal Code (as amended by the Law dated July 12, 2018), imprisonment shall be served in medium-security institutions of the penal enforcement system by persons sentenced to imprisonment for a term exceeding two years for committing intentional minor, medium-gravity, or serious crimes, who have not previously served a sentence of imprisonment. In this particular case, convicted person B. falls within this category. According to the court, these circumstances and legal provisions indicate that the new criminal law in question does not have retroactive effect with respect to the convicted person in relation to his conviction under part 3 of Article 28 and subparagraph 2) of part 4 of Article 189 of the Criminal Code. Under these circumstances, convicted person B. should be assigned a medium-security institution of the penal enforcement system to serve his imprisonment for the aggregate of offenses, on the basis of subparagraph 2) of part 5 of Article 46 of the Criminal Code.

According to the court, within the meaning of Article 46 of the Criminal Code, the more severe type of institution must be designated for serving imprisonment where such type of institution has been established by one of the judgments included in the aggregate, both in cases involving an aggregate of judgments and in cases involving an aggregate of criminal offenses.

In my opinion, the above arguments put forward by the courts of all instances are unconvincing and are not based on the applicable criminal legislation, which resulted in the refusal to grant the attorney's application requesting that a minimum-security institution be designated for convicted person B. My arguments are as follows.

Firstly, the second paragraph of subparagraph 4) of part 5 of Article 46 of the Criminal Code (as amended on July 12, 2018) states that, in the case of an aggregate of judgments, the more severe type of institution established by one of the judgments included in the aggregate shall be designated for serving imprisonment. As is evident from this provision of the law, it refers exclusively to an aggregate of judgments. In our case, there is not an aggregate of judgments, but an aggregate of criminal offenses. Consequently, by extending this provision to an aggregate of crimes, the court, on the one hand, gives an expansive interpretation of a provision of criminal law and, on the other hand, applies this provision by analogy. Pursuant to subparagraph 10) of paragraph 3 of Article 77 of the Constitution and Article 4 of the Criminal Code, the application of criminal law by analogy is prohibited.

Secondly, pursuant to the requirements of Article 58 of the Criminal Code, in the case of an aggregate of criminal offenses, the court, having imposed a principal and additional punishment separately for each offense, determines the final punishment by absorbing the less severe punishment into the more severe one or by fully or partially adding the punishments imposed.

Thirdly, paragraph 14 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan “On Certain Issues of Imposing Criminal Punishment” states: “When imposing punishment for an aggregate of criminal offenses, courts must take into account that the principles provided for by law concerning the absorption of a less severe punishment by a more severe punishment or the full or partial addition of punishments must be substantiated in the judgment.”

Proceeding from the above principles of criminal law, the final punishment imposed on B. by the court judgment was determined pursuant to part 3 of Article 58 of the Criminal Code for the aggregate of criminal offenses by absorbing the less severe punishment into the more severe one.

Fourthly, pursuant to the above-mentioned Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan, when applying the principle of absorption of one less severe punishment by another, more severe punishment, courts should bear in mind that the degree of severity of punishments is determined in the order in which they are listed in Article 40 of the Criminal Code. When the same type of punishment is imposed for each criminal offense included in the aggregate, the most severe punishment shall be considered the one with the longer term or greater amount.

In our case, the most severe punishment is the punishment imposed under part 4 of Article 366 of the Criminal Code. The punishment imposed under part 4 of Article 366 of the Criminal Code fully absorbs the punishment imposed under part 4 of Article 189 of the Criminal Code. The punishment for a serious crime has been absorbed by the punishment for an especially serious crime. At the same time, the regime imposed under part 4 of Article 189 of the Criminal Code has been absorbed pursuant to part 3 of Article 58 of the Criminal Code.

Fifthly, the type of penal enforcement institution must be designated after the final measure of punishment has been determined, that is, after the less severe punishment has been absorbed by the more severe one, and the type of institution provided for the more serious crime must be designated, which is precisely what was done.

Sixthly, under these circumstances, the court makes a serious error by once again referring to part 4 of Article 189 of the Criminal Code when determining the conditions for serving the sentence, after the issue has already been finally resolved in accordance with part 3 of Article 58 of the Criminal Code.

Seventhly, the amendments introduced into Article 46 of the Criminal Code by the Law dated July 12, 2018, mitigate the conditions for serving a sentence under part 4 of Article 366 of the Criminal Code and therefore have retroactive effect.

Thus, the court was obliged to grant the attorney's private appeal.

As part of the policy of liberalizing criminal law, the minimum limits of sanctions have been excluded from more than four hundred elements of crimes, which has resulted in uncertainty regarding the application of the provisions on the retroactive effect of criminal law. An analysis of judicial practice shows that, when deciding to mitigate punishment, courts generally relied on the provision according to which the punishments imposed on persons convicted under previously applicable criminal law who have not yet served their sentences must be brought into conformity with the Criminal Code of the Republic of Kazakhstan in cases where the punishment imposed by the court is more severe than the maximum limit established by the sanction of the relevant article of the Criminal Code of the Republic of Kazakhstan. In many cases, the punishments imposed by judges were either not reduced at all or were reduced only to the maximum limit of punishment established by the sanction of the relevant article of the Special Part of the Criminal Code of the Republic of Kazakhstan. In my opinion, such a restrictive interpretation of Article 6 of the Criminal Code is unacceptable and contradicts the Constitution. I believe that, where the minimum limit of certain types of punishment has been excluded, the court must classify the criminal offense under the new criminal law and, on the basis of the general principles of sentencing, impose a punishment of a lesser amount, which does not necessarily have to be reduced only to the maximum limit of the sanction of the relevant article of the Special Part of the Criminal Code.

The validity of this position lies in the fact that it is based on a reasonable argument: in the sanctions, the legislator has redefined the nature of the public danger posed by the relevant criminal offense, recognizing it as less dangerous. It is precisely this approach to understanding the meaning of Article 6 of the Criminal Code that most effectively promotes the implementation of the principles of justice and humanism when imposing punishment. However, there are cases where it is necessary not to reduce the amount of the sanction, but to replace it with another type of punishment, if the punishment imposed under the court judgment has been excluded from the sanction of the article of the Special Part of the Criminal Code or the new wording of the article provides for a more lenient type of punishment as an alternative. In this situation, the court must apply the retroactive effect of criminal law to the extent that it improves the person's position, taking into account the general rules governing the imposition of punishment.

In conclusion, I would like to note that the Laws of the Republic of Kazakhstan dated December 19, 2020, “On Amendments and Additions to Certain Legislative Acts of the Republic of Kazakhstan on Issues of Strengthening the Protection of Citizens' Rights in Criminal Proceedings and Combating Corruption,” and dated December 30, 2020, “On Amendments and Additions to Certain Legislative Acts of the Republic of Kazakhstan on Issues of Implementing Certain Provisions of the Address of the Head of State to the People of Kazakhstan dated September 1, 2020, ‘Kazakhstan in the New Reality: Time for Action,’” introduced amendments and additions to part 5 of Article 46 of the Criminal Code (see the commentary to part 5 of Article 46 of the Criminal Code).

Commentary from 2021 on the Criminal Code of the Republic of Kazakhstan by Isidor Shamilovich Borchashvili, Honored Figure of Kazakhstan, Doctor of Law, Professor, Academician of the National Academy of Natural Sciences of Kazakhstan, member of the Scientific Advisory Councils under the Constitutional Council of the Republic of Kazakhstan and the Supreme Court of the Republic of Kazakhstan, member of the working group on reform of the law enforcement system under the Security Council of the Republic of Kazakhstan, Honored Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.

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