LL.M. Askarov E.H.

Kostanay State University, Kostanay, Kazakhstan

Purpose of punishment with consideration of extenuating circumstances directly specified in the criminal law (comparative legal analysis of criminal law of Kazakhstan and Russia)

According to the Art.52 of the Republic of Kazakhstan Criminal Code (Art.60 of the Russian Federation Criminal Code) the court penalizes the person found guilty within limits specified by the relevant article of the Special part and with taking into account provisions of the General part. Following the principle of individualization, the court considers character and public danger degree of a crime, the personality of a convict, including his behavior before committing the crime, the circumstances extenuating and aggravating responsibility and punishment, and also influence of the appointed punishment on correction of the convict and on living conditions of his family or the dependant persons.

The extenuating circumstances are those which speak well for the convict and testify to a smaller degree of his guilt, and thus can reduce his legal responsibility. It means that in the presence of a fair amount of extenuating circumstances a penalty comes closer to the minimum limit of the legal sanction [1].

Basically it is a question of decreasing the highest limit of the legal sanction on any crimes according to the Criminal Code Special part articles. In the presence of the circumstances listed in Art.53 of the Republic of Kazakhstan Criminal Code (Art.61 of the Russian Federation Criminal Code) the court is obliged to reduce the punishment. As Ishchenko A.V. stated: «It stimulates a person who has committed a crime to contribute to the crime investigation and to reduce the harm done to the victim by exchange to the reduction of weight of harmful consequences for him» [2].

The list of extenuating circumstances, as Kruglikov L.L. notices, has a double function: obliging and guiding. According to the first of them the court is obliged to reveal all available extenuating circumstances, to reflect them in a sentence and to consider them when choosing a measure of criminal and legal punishment. The second function is guidance. Just like the circumstances listed in this article, the court with this right given can recognize other similar circumstances to be extenuating [3].

Neither Kazakhstan, nor Russian legislator did not assign strict legal validity to each extenuating circumstance, but rather obliged the court to follow a number of conditions:

- to reveal and to consider the existence of extenuating circumstances;

- to not consider circumstance as extenuating if it is indicated by the relevant article of the Special part as a crime sign;

- to reduce the punishment within the legal sanction of the relevant article of the Criminal Code Special part in the presence of an extenuating circumstance or a set of extenuating circumstances.

Only in one case the measure of decreasing the punishment in the presence of certain extenuating circumstances is specified. According to p.4 Art.53 of the Republic of Kazakhstan Criminal Code «in the presence of extenuating circumstances specified in paragraphs «d» and «k» p.1 Art.53 of CC RK, and in the absence of aggravating circumstances, the term or the amount of a punishment of a small or average weight crime cannot exceed a half, of a serious crime - two thirds, of especially serious crime - three quarters of the maximum term or amount of the most severe punishment prescribed by the relevant article of the present Code Special part» [4].

However there is a number of questions demanding an explanation. So, for example, the particle «and», used in this norm means its applicability only with a set of the extenuating circumstances provided by specified paragraphs in p.1 Art.53 of the RK CC. These paragraphs comprise the list of circumstances and each of them separately admits extenuating. Therefore it is not clear whether the combination of all circumstances specified in these paragraphs is necessary or at least one of them is enough.

In this sense this norm is more successfully reflected in p.1 Art.62 of the Russian Federation Criminal Code where it says: «in the presence of the extenuating circumstances provided by paragraphs «i» and (or) «k» of part 1 of article 61 of the present Code, and in the absence of aggravating circumstances, the term or the amount of punishment cannot exceed two thirds of the maximum term or the amountof the most severe punishment prescribed by the relevant article of the present Code Special part» [5]. Thus, the question of the set of extenuating circumstances of these two paragraphs is removed, and it is more exact on not needing such set, however it is not explained whether all circumstances of each paragraph are needed or one of them is enough.

It should be noted that the Russian legislator has been more far-sighted than ours, having allocated questions of purpose of punishment in the presence of extenuating circumstances in separate article of the Criminal Code. Besides that it reflects more purpose nuances of the punishment, allowing to better differentiate responsibility, and it also contains progressive norms about the pre-judicial cooperation agreement which together with extenuating circumstances set the limits of punishment for the court. Probably Kazakhstan should adopt a number of provisions of Art. 62 of the Russian Federation Criminal Code and to reflect them in the Criminal Law.

Literature:

1 Myasnikov O. A. Circumstances mitigating and aggravating punishment in theory, legislation and court practice. M.; JSC Publishing House «Юрлитинформ», 2002.-240p.

2 Ishchenko A.V. Assignment of punishment by the Criminal code of the Russian Federation. Scientific-practical guide. – M.: «Юрлитинформ», 2002.-160p.

3 Kruglikov L.L. Mitigating and aggravating circumstances in the Soviet criminal law. Yaroslavl, 1977. – 122p.

4 The Criminal Code of the Republic of Kazakhstan of 16.07.1997.

5 The Criminal Code of the Russian Federation of 13.06.1996.