Commentary on Article 46. Arrest of the Criminal Code of the Republic of Kazakhstan
1. Arrest consists of keeping a convicted person in conditions of strict isolation from society for the entire term of the sentence imposed.
2. Arrest is established for a period of one to six months. In cases where community service, corrective labour or a fine is replaced by arrest, it may be imposed for a period of less than one month.
3. Arrest shall not be applied to persons who have not reached the age of eighteen at the time the judgment is pronounced, as well as to pregnant women and women who have minor children.
4. Military personnel shall serve arrest in a guardhouse.
Arrest is a new type of criminal punishment and consists of keeping a convicted person in conditions of strict isolation from society for the entire term of the sentence imposed (Part 1 of Article 46 of the Criminal Code of the Republic of Kazakhstan).
The designation of arrest as a separate type of punishment indicates the legislator's particular position towards it. Indeed, by its very nature, arrest constitutes short-term deprivation of liberty.
The separation of this short-term deprivation of liberty into a distinct type of punishment is explained by the fact that, while retaining the main characteristics of deprivation of liberty, it also has its own specific features.
Its distinctive feature is the special status of this punishment, which presupposes that it is served in special institutions. This makes it possible to minimise the risk of socially negative consequences associated with sending offenders to correctional colonies.
Pursuant to Part 2 of Article 46 of the Criminal Code of the Republic of Kazakhstan, arrest is established for a period of one to six months. Arrest is also applied in cases where community service, corrective labour or a fine is replaced by arrest, and it may be imposed for a period of less than one month.
Arrest shall not be applied to persons who have not reached the age of eighteen at the time the judgment is pronounced, as well as to pregnant women and women who have minor children (Part 3 of Article 46 of the Criminal Code of the Republic of Kazakhstan). The procedure and conditions for the execution of arrest are provided for in Chapter 10 of the Penal Enforcement Code of the Republic of Kazakhstan.
According to Article 63 of the Penal Enforcement Code of the Republic of Kazakhstan, persons sentenced to arrest serve their sentences in arrest houses at the place of conviction. As a rule, a convicted person serves the entire term of the sentence in one arrest house. The transfer of a convicted person to another arrest house is permitted in the event of the latter's illness or to ensure the convicted person's safety, as well as in other circumstances preventing the convicted person from remaining in that arrest house.
According to Part 1 of Article 64 of the Penal Enforcement Code of the Republic of Kazakhstan, persons sentenced to arrest are held under conditions of strict isolation. They are isolated from other categories of persons held in custody, and men, women, minors, as well as persons who have previously served sentences in places of deprivation of liberty and have criminal records, are accommodated separately.
Secondly, strict isolation and the short duration of this punishment determine the specific features of the regime under which this sentence is served. In accordance with penal enforcement legislation, such convicted persons are not granted visits, except for visits with lawyers; they are not permitted to receive parcels, packages or banderoles, with the exception of those containing essential items and seasonal clothing. General education and vocational training are not provided to convicted persons; movement without an escort is not permitted. In all other respects, the conditions of confinement established by the Penal Enforcement Code of the Republic of Kazakhstan for persons serving sentences of deprivation of liberty under the general regime in prison shall apply to the convicted persons under consideration.
Arrest is a kind of reminder to the convicted person of what criminal punishment means and that a more prolonged deprivation of liberty may follow this type of punishment.
Military personnel sentenced to arrest serve their sentences in a guardhouse. Officers, warrant officers, midshipmen, and military personnel of sergeant, petty officer and enlisted ranks are held separately from one another and separately from military personnel held in the guardhouse on other grounds (Article 145 of the Penal Enforcement Code of the Republic of Kazakhstan).
Commentary of 2007 on the Criminal Code of the Republic of Kazakhstan by I. Sh. Borchashvili, Honoured Figure of Kazakhstan, Doctor of Law, Professor, Academician of the Kazakhstan National Academy of Natural Sciences.
Date of amendment of the legal act: 02.08.2007
Date of adoption of the legal act: 02.08.2007
Place of adoption: NONE
Authority that adopted the legal act: 180000000000
Territorial scope of application: 100000000000
Registration number assigned to the normative legal act by the rule-making authority: 167
Status of the act: new
Area of legal relations: 028000000000
Form of the act: COMMENTARY
Legal force: 1900
Language of the act: Russian
Criminal Code, Commentaries on the Criminal Code, Normative Resolution of the Supreme Court of the Republic of Kazakhstan, criminal legislation, Normative Legal Acts of the Republic of Kazakhstan.
