Commentary on Article 79. Criminal Record of the Criminal Code of the Republic of Kazakhstan

1. A person convicted of committing a crime shall be deemed to have a criminal record from the date on which the court's guilty verdict enters into legal force until the criminal record is expunged or removed. In accordance with this Code, a criminal record shall be taken into account when determining recidivism of crimes, dangerous recidivism of crimes, and when imposing punishment.

2. A person released from punishment, as well as a person convicted of committing a criminal misdemeanor, shall be recognized as having no criminal record.

3. A criminal record shall be expunged:

1) in respect of persons given a suspended sentence — upon expiration of the probationary control period;

2) in respect of persons sentenced to penalties more lenient than deprivation of liberty — upon actual completion of the sentence;

3) in respect of persons sentenced to deprivation of liberty for crimes of minor or medium gravity — upon expiration of three years after serving the sentence;

4) in respect of persons sentenced to deprivation of liberty for grave crimes — upon expiration of six years after serving the sentence;

5) in respect of persons sentenced to deprivation of liberty for especially grave crimes — upon expiration of eight years after serving the sentence.

4. If a convicted person has been released from serving a sentence ahead of schedule in accordance with the procedure established by the legislation of the Republic of Kazakhstan, or if the unserved part of the sentence has been replaced with a more lenient type of punishment, the period for expungement of the criminal record shall be calculated on the basis of the sentence actually served, commencing from the moment of release from serving the principal and additional types of punishment.

5. If, in addition to the principal punishment, an additional punishment was imposed on a person by a court verdict, the period for expungement of the criminal record shall be calculated from the moment the principal and additional types of punishment have been served.

In cases where an additional punishment in the form of deprivation, for life, of the right to hold a certain position or engage in a certain activity is imposed, the period for expungement of the criminal record shall be calculated from the moment the principal type of punishment has been served.

6. Where a person is convicted, on the basis of the aggregate of criminal offenses or the aggregate of sentences, of crimes belonging to different categories of gravity, criminal records shall be expunged separately for each crime, while the periods for expungement shall be calculated from the moment the punishment imposed on the basis of the aggregate of criminal offenses or the aggregate of sentences has been served.

7. If, after serving the sentence, a convicted person has demonstrated impeccable conduct, the court may, upon that person's petition, remove the criminal record before the expiration of the period for its expungement.

This provision shall not apply to persons sentenced to deprivation of liberty for grave or especially grave crimes, as well as to persons upon whom punishment was imposed in cases of recidivism of crimes or dangerous recidivism of crimes.

8. If, before the expiration of the period for expungement of a criminal record, a convicted person commits another crime, the running of the period for expungement of the criminal record shall be interrupted. The period for expungement of the criminal record for the first crime shall be recalculated from the beginning after the principal and additional types of punishment for the last crime have actually been served. In such cases, the person shall be considered to have a criminal record for both crimes until the expiration of the period for expungement of the criminal record for the more serious of them.

9. The expungement or removal of a criminal record shall annul all criminal-law consequences provided for by this Code, with the exception of restrictions established by an additional type of punishment imposed for life.

Among the institutions of criminal law, the institution of criminal record occupies a special place. There is no legislative definition of a criminal record. Scientific definitions of this concept have been proposed in legal literature; however, a uniform understanding of criminal record has not been achieved.

A criminal record is a legal consequence arising from the fact that a person has been convicted and sentenced to a certain type of punishment for a crime, expressed in certain restrictions that do not constitute the substance of the punishment itself: the fact of having a criminal record affects the degree of public danger posed by the person and by the act committed by that person.

The existence of a criminal record entails adverse consequences for a person of a criminal-law and other nature. Other consequences include the inability to engage in teaching activities, a prohibition on holding certain positions, etc.

The consequences arising from labor legislation are manifested in the fact that the period of serving a sentence in the form of deprivation of liberty is not included in the total length of employment service when calculating a pension.

The law classifies among the consequences of a criminal-law nature the fact that a criminal record is taken into account in cases of recidivism and dangerous recidivism of crimes, as well as when imposing punishment.

The criminal-law significance of a criminal record also lies in the fact that the existence of a criminal record prevents a person from being released from criminal liability in connection with active repentance (Article 65 of the Criminal Code) and under other forms of release from criminal liability and punishment (Articles 67, 68, 69, 70, etc.).

When imposing punishment, a criminal record is taken into account both directly in assessing the personality of the guilty person and in connection with recidivism of crimes. Recidivism of crimes constitutes an aggravating circumstance (subparagraph 1) of paragraph 1 of part 1 of Article 54 of the Criminal Code); it is specifically in cases of recidivism of crimes that special rules for imposing punishment apply (Article 59 of the Criminal Code). The type of recidivism of crimes is taken into account when determining the type of institution within the penal enforcement system for persons sentenced to deprivation of liberty (subparagraphs 2), 3), 4) of part 5 and part 6 of Article 46 of the Criminal Code).

The emergence of the status of having a criminal record is associated not with the moment of a person's conviction, but with the moment when the guilty verdict enters into legal force. The status of having a criminal record extends throughout the entire period of serving the sentence and for a certain period established by law after its completion.

According to part 1 of the commented article, a person convicted of committing a crime shall be deemed to have a criminal record from the date on which the court's guilty verdict enters into legal force until the criminal record is expunged or removed.

In accordance with paragraph 7 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated December 25, 2007, “On the Application by Courts of Legislation on Recidivism of Crimes,” pursuant to part 1 of Article 79 of the Criminal Code, a person is recognized as having a criminal record from the date on which the guilty verdict enters into legal force. Therefore, where a person commits a new crime before the previous verdict has entered into legal force, the criminal record under the previous verdict shall not be taken into account when determining the type of recidivism.

The emergence of the status of having a criminal record is associated with the entry into legal force not merely of a guilty verdict, but of a verdict imposing punishment.

In certain cases, a criminal record is expunged from the moment the sentence has been served. For example, where a person is sentenced to a fine for a crime committed, that person shall be considered to have a criminal record from the date on which the court verdict enters into legal force until the date on which the fine imposed by the court verdict is paid in full. Where a person is given a suspended sentence of deprivation of liberty, the convicted person shall be considered to have a criminal record from the date on which the court verdict enters into legal force until the expiration of the probationary control period established in the verdict.

In most cases, the status of having a criminal record is limited to a certain period, upon expiration of which it is expunged in accordance with the law (Articles 79 and 89 of the Criminal Code) or removed. This period depends on the type and severity of the punishment imposed by the court, as well as on the category of the crime committed.

In accordance with part 2 of Article 79 of the Criminal Code, persons released from punishment are recognized as having no criminal record. A person convicted of a criminal misdemeanor is also not considered to have a criminal record.

The question of whether a criminal record is associated with the fact of imposing punishment or with the fact of actually serving it remains unresolved in legal theory and, accordingly, causes difficulties in practice. It is our view that where a guilty verdict is delivered without imposing punishment, as well as where a convicted person is released from punishment by virtue of an amnesty act or due to the expiration of the limitation period, the guilty person, having not served the punishment, should be recognized as having no criminal record, regardless of the duration of pre-trial detention. Therefore, the existence of a criminal record should be linked to the fact of serving the punishment. Moreover, when establishing periods for expungement of a criminal record, criminal law specifically refers to the serving of punishment (part 3 of Article 79 of the Criminal Code).

“Persons who have previously served a sentence in the form of deprivation of liberty shall be understood to mean,” as stated in paragraph 6 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated June 23, 2006, “On Judicial Practice in Determining the Types of Institutions of the Penal Enforcement System for Persons Sentenced to Deprivation of Liberty,” “persons who, in the past, pursuant to a court verdict that has entered into legal force, were sentenced to deprivation of liberty and actually served that sentence in institutions of the penal enforcement system, provided that such criminal record had not been removed or expunged in accordance with the procedure established by law at the time the new crime was committed.”

Based on this rule, persons fully released from criminal liability are recognized as having no criminal record, in particular, in connection with active repentance (Article 65 of the Criminal Code), in cases of exceeding the limits of necessary defense (Article 66 of the Criminal Code), upon fulfillment of the terms of a procedural agreement (Article 67 of the Criminal Code), in connection with reconciliation of the parties (Article 68 of the Criminal Code), due to a change in circumstances (Article 70 of the Criminal Code), upon expiration of the limitation periods (Article 71 of the Criminal Code), through the application of compulsory educational measures (Article 83 of the Criminal Code) or medical measures (Article 91 of the Criminal Code).

Persons released from punishment in connection with the establishment of a surety (Article 69 of the Criminal Code), due to illness (Article 75 of the Criminal Code), as a result of a concurrence of grave circumstances (Article 76 of the Criminal Code), in connection with the expiration of the limitation period for the execution of a guilty verdict (Article 77 of the Criminal Code), or on the basis of an amnesty or pardon act (Article 78 of the Criminal Code), are also recognized as having no criminal record.

A person convicted of an act whose criminality and punishability have been abolished by a new criminal law shall be considered to have no criminal record from the date on which that law enters into force.

Paragraph 12 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan “On Certain Issues of Imposing Criminal Punishment” states that a person released from punishment by a court verdict (ruling), regardless of the period spent in custody in connection with the application of detention as a preventive measure, shall, in accordance with part 2 of Article 79 of the Criminal Code, be considered to have no criminal record from the moment the judicial act on the basis of which that person was released from punishment enters into legal force.

Persons released from serving a sentence pursuant to Article 77 of the Criminal Code due to the expiration of the limitation period for the execution of a guilty verdict; persons given a suspended sentence (Article 63 of the Criminal Code) — upon expiration of the probationary control period; persons in respect of whom execution of the verdict has been deferred (Article 74 of the Criminal Code) — upon expiration of the deferral period, if the person was released from serving the sentence; or persons released from punishment as a result of a concurrence of grave circumstances (part 1 of Article 76 of the Criminal Code) shall not be considered persons who have previously been sentenced to deprivation of liberty.

According to paragraph 6, eighth paragraph, of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan “On Judicial Practice in Determining the Types of Institutions of the Penal Enforcement System for Persons Sentenced to Deprivation of Liberty”: “Persons given a suspended sentence pursuant to Article 63 of the Criminal Code, as well as persons in respect of whom deferment of execution of punishment was applied pursuant to Article 74 of the Criminal Code, shall not be classified as persons who have previously served deprivation of liberty if they did not actually serve deprivation of liberty in institutions of the penal enforcement system.”

Persons whose punishment imposed by a court verdict (a fine, community service, corrective labor, restriction of liberty, etc.) was replaced with deprivation of liberty on the grounds provided for in the General Part of the Criminal Code for those types of punishment cannot be regarded as persons sentenced to deprivation of liberty.

Paragraph 16 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated April 11, 2002, “On Judicial Practice in Cases Involving Criminal Offenses Committed by Minors and Their Involvement in the Commission of Criminal Offenses and Other Antisocial Acts,” emphasizes that the law does not provide for the possibility of replacing an educational measure with criminal punishment under any circumstances, including where a minor evades such measures or commits a new criminal offense during the period in which compulsory educational measures are being applied.

Minors in respect of whom educational measures have been applied are recognized as having no criminal record in accordance with part 2 of Article 79 of the Criminal Code.

However, if a person was sentenced to deprivation of liberty conditionally (with the application of Article 63 of the Criminal Code) or with deferment of execution of the verdict (Articles 74 and 76 of the Criminal Code), and that person commits a new crime during the probationary control period or during the period of deferment of execution of the verdict, or if the suspended sentence or deferment of execution of the verdict is revoked and that person is sent to the appropriate institution to serve the sentence of deprivation of liberty imposed by the court verdict, that person shall be considered to have a criminal record.

There are two exceptions to this rule, in which persons who have not actually served their punishment are recognized as having a criminal record. In the case of a suspended sentence (Article 63 of the Criminal Code), the criminal record remains in effect during the probationary control period, which, pursuant to part 3 of Article 63 of the Criminal Code, is established for the entire term of deprivation of liberty imposed, and for minors — for a period ranging from six months to one year under the rules of part 2 of Article 44 of the Criminal Code. In the case of deferment of serving a sentence, the convicted person is considered to have a criminal record throughout the entire period of deferment. Thus, a person released from punishment is recognized as having no criminal record if that person did not actually serve the punishment or if the release was not conditional.

Paragraph 2 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan “On the Application by Courts of Legislation on Recidivism of Crimes” states that, pursuant to part 2 of Article 79 of the Criminal Code, a person released from punishment and therefore recognized as having no criminal record is a person in respect of whom a guilty verdict has been delivered with release from punishment on the grounds specified in part 6 of Article 393 of the Criminal Procedure Code (in connection with the issuance of an amnesty act releasing the convicted person from application of the punishment imposed by that verdict, or in connection with the absorption of the punishment imposed by the court verdict by the period during which the person was held in custody in the given case due to the application of detention as a preventive measure).

The following persons may not be regarded as having previously served a sentence in the form of deprivation of liberty:

• persons who were held in places of deprivation of liberty pursuant to a court verdict before the case was considered under cassation procedure, if the said judicial instance subsequently quashed the verdict and terminated the case, or amended it by imposing a punishment not involving deprivation of liberty, or applied a suspended sentence of deprivation of liberty or deferment of execution of the verdict;
• persons who were sentenced to deprivation of liberty but did not actually serve the punishment and were not held in places of deprivation of liberty due to deferment of serving the sentence granted to pregnant women, women with young children, and men raising young children on their own (Article 74 of the Criminal Code); release from punishment due to illness (Article 75 of the Criminal Code); a concurrence of grave circumstances (Article 76 of the Criminal Code); failure to enforce the verdict due to expiration of the limitation period for the execution of a guilty verdict (Article 77 of the Criminal Code); or the application of an amnesty act or release from serving the sentence by way of a pardon (Article 78 of the Criminal Code);
• persons sentenced to deprivation of liberty within the period of their detention as a preventive measure, since they did not serve the punishment in institutions of the penal enforcement system;
• persons serving a sentence in the form of deprivation of liberty, where they are convicted of crimes committed before the delivery of the verdict pursuant to which they are serving a sentence of deprivation of liberty for the first time;
• persons sentenced to deprivation of liberty who served their sentences in places of deprivation of liberty for acts whose criminality and punishability have been eliminated by the current law, as well as persons for whose acts the current law does not provide for deprivation of liberty as a punishment.

In accordance with part 3 of Article 79 of the Criminal Code, a criminal record shall be expunged:

1. in respect of persons given a suspended sentence — upon expiration of the probationary control period;
2. in respect of persons sentenced to penalties more lenient than deprivation of liberty — upon actual completion of the sentence;
3. in respect of persons sentenced to deprivation of liberty for crimes of minor or medium gravity — upon expiration of three years after serving the sentence;
4. in respect of persons sentenced to deprivation of liberty for grave crimes — upon expiration of six years after serving the sentence;
5. in respect of persons sentenced to deprivation of liberty for especially grave crimes — upon expiration of eight years after serving the sentence.

Article 89 of the Criminal Code establishes reduced periods for expungement of criminal records in respect of convicted persons who committed a crime before reaching the age of 18.

For convicted persons who have been released from serving their sentence ahead of schedule in accordance with the procedure established by law, and for those whose unserved part of the sentence has been replaced with a more lenient type of punishment, the period for expungement of the criminal record shall be calculated on the basis of the sentence actually served, commencing from the moment of early release from serving the principal and additional types of punishment or, in the event of replacement of the punishment, from the moment the more lenient type of punishment has been served.

According to part 5 of the commented article, if, in addition to the principal punishment, an additional punishment was imposed on a person by a court verdict, the period for expungement of the criminal record shall be calculated from the moment the principal and additional types of punishment have been served.

In cases where an additional punishment in the form of deprivation, for life, of the right to hold a certain position or engage in a certain activity is imposed, the period for expungement of the criminal record shall be calculated from the moment the principal type of punishment has been served. For example, the period for expungement of the criminal record of a person sentenced to deprivation of liberty and deprived for life of the right to hold a certain position or engage in a certain activity shall commence on the day of release from places of deprivation of liberty. If a fine is imposed as the principal punishment together with deprivation, for life, of the right to hold a certain position or engage in a certain activity, the criminal record shall be expunged on the day the fine is paid.

If a person is convicted on the basis of the aggregate of crimes or the aggregate of sentences for crimes belonging to different categories of gravity, criminal records shall be expunged separately for each crime, while the periods for expungement shall be calculated from the moment the punishment imposed on the basis of the aggregate of crimes or the aggregate of sentences has been served. A similar provision is contained in paragraph 9-1 of the above-mentioned Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan, according to which, where a person is convicted on the basis of the aggregate of crimes or sentences for crimes belonging to different categories of gravity, criminal records shall be expunged separately for each crime in accordance with part 3 of Article 79 of the Criminal Code, while all periods for expungement shall be calculated from the moment the person has actually served the final punishment imposed by the court on the basis of Articles 58 and 60 of the Criminal Code.

Where a person is convicted on the basis of the aggregate of crimes, and one of the crimes was committed while the person was a minor and the other crime was committed after reaching the age of eighteen, the period for expungement of the criminal record for each crime shall be calculated independently after serving the punishment imposed on the basis of the aggregate of crimes: for the crime committed while the person was a minor — under Article 89 of the Criminal Code, and for the crime committed as an adult — under Article 79 of the Criminal Code. In such cases, the criminal record for the crime committed as an adult and included in the aggregate of criminal offenses shall be taken into account.

If, before the expiration of the period for expungement of a criminal record, a convicted person commits another crime, the running of the period for expungement of the criminal record shall be interrupted. According to part 8 of the commented article, the period for expungement of the criminal record for the first crime shall be recalculated from the beginning after the principal and additional types of punishment for the last crime have actually been served. In such cases, the person shall be considered to have a criminal record for both crimes until the expiration of the period for expungement of the criminal record for the more serious of them.

Expungement of a criminal record means the automatic termination of the status of having a criminal record upon expiration of the period established by law after serving the sentence. In this case, no legal acts need to be adopted (Articles 79 and 89 of the Criminal Code).

Removal of a criminal record is carried out by the court upon the application of the convicted person and means termination of the status of having a criminal record only after the court ruling on this matter in respect of a specific person has entered into legal force.

Removal of a criminal record is carried out in accordance with part 7 of the commented article, provided that the convicted person has demonstrated impeccable conduct after serving the sentence. Conduct shall be considered impeccable if the convicted person does not commit offenses, works conscientiously, receives positive character references, takes care of their family, etc.

Removal of a criminal record means the annulment of the legal consequences of the criminal record before the expiration of the period for its expungement.

A criminal record may also be removed from persons released from criminal liability or from further serving of punishment on the basis of an amnesty act or in the event of a pardon (parts 2 and 4 of Article 78 of the Criminal Code).

Thus, removal of a criminal record before the expiration of the period for its expungement is possible by a court ruling or by acts of amnesty or pardon.

Paragraph 15 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan “On the Court Verdict” states: “It shall be explained that other information about the identity of the defendant that is relevant to the case may include data taken into account when imposing punishment, determining the type of institution within the penal enforcement system, establishing the type of recidivism, and qualifying the acts. In particular, such data include information about unexpunged and unremoved criminal records, the application of amnesty, the defendant's disability, and other information.

The expungement and removal of a criminal record shall not be indicated in the introductory part of the verdict, except in cases where an amnesty act was previously applied to the defendant and this circumstance is relevant to deciding whether a newly issued amnesty act may be applied to that person.”

Early removal of a criminal record in accordance with part 7 of the commented article is not permitted in respect of persons sentenced to deprivation of liberty for grave or especially grave crimes, as well as persons upon whom punishment was imposed in cases of recidivism of crimes or dangerous recidivism of crimes.

The concepts of grave and especially grave crimes are set out in the commentary to parts 4 and 5 of Article 11 of the Criminal Code.

The concepts of recidivism and dangerous recidivism of crimes are set out in the commentary to parts 1 and 2 of Article 14 of the Criminal Code.

The expungement or removal of a criminal record, pursuant to part 9 of the commented article, annuls all criminal-law consequences provided for by the Criminal Code, with the exception of restrictions established by an additional type of punishment imposed for life.

The legal consequences of expungement or removal of a criminal record remain in force throughout the entire life of a person sentenced to deprivation, for life, of the right to hold a certain position or engage in a certain activity. These restrictions also remain in force when applying for entry into public service. In accordance with the Law of the Republic of Kazakhstan dated November 23, 2015, “On Public Service,” restrictions on admission to service in law enforcement agencies are established by the laws of the Republic of Kazakhstan.

Expungement and removal of a criminal record should be distinguished from rehabilitation. Unlike expungement and removal of a criminal record in respect of a person who was lawfully brought to criminal liability and convicted of a crime committed, rehabilitation applies to a person who did not commit a crime and was unjustifiably brought to criminal liability or unlawfully convicted. In the event of rehabilitation, the person is fully restored to their rights, and an apology is made to that person (and, where necessary, their relatives) on behalf of the state. If the person or their relatives do not object to publication, the apology is published in the press at the person's place of residence.

Damage caused to a citizen as a result of unlawful prosecution or unlawful conviction shall be compensated in full in accordance with the procedure established by law.

Thus, pursuant to part 1 of Article 37 of the Criminal Procedure Code, a person acquitted by a court, as well as a suspect, accused person or defendant in respect of whom a court or criminal prosecution authority has issued a ruling terminating the criminal case on the grounds provided for in subparagraphs 1), 2), 5), 6), 7) and 8) of part 1 of Article 35 of the Criminal Procedure Code, shall be subject to rehabilitation, that is, restoration of their rights, and may not be subjected to any restrictions on the rights and freedoms guaranteed by the Constitution of the Republic of Kazakhstan.

The court and the criminal prosecution authority shall take all measures provided for by law to rehabilitate the person specified in part 1 of Article 37 of the Criminal Procedure Code and compensate for the harm caused to that person as a result of unlawful actions by the body conducting the criminal proceedings (part 2).

See also the Regulatory Resolutions of the Supreme Court of the Republic of Kazakhstan dated July 9, 1997, “On the Practice of Applying Legislation on Compensation for Harm Caused by Unlawful Actions of Bodies Conducting Criminal Proceedings”; dated November 27, 2015, “On the Application by Courts of Legislation on Compensation for Moral Harm”; and Articles 951 and 952 of the Civil Code of the Republic of Kazakhstan.

Commentary on the Criminal Code of the Republic of Kazakhstan (2021 edition) by Isidor Shamilovich Borchashvili, Honored Figure of Kazakhstan, Doctor of Law, Professor, Academician of the Kazakhstan National Academy of Natural Sciences, 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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