Commentary on Article 75. Exemption from Punishment Due to Illness of the Criminal Code of the Republic of Kazakhstan
1. A person who, after committing a criminal offence, develops a mental disorder that deprives them of the ability to understand the actual nature and social danger of their actions (omissions) or to control them shall be exempted from punishment by a court, and a person serving a sentence shall be released by a court from further serving that sentence. The court may impose compulsory medical measures provided for by this Code on such persons.
2. A person suffering from another serious illness that prevents them from serving their sentence, except for life imprisonment, shall be released by a court from serving the sentence, or the sentence may be replaced with a more lenient type of punishment, taking into account the nature of the illness, the severity of the criminal offence committed, the personality of the convicted person, and other circumstances.
3. The persons specified in Parts One and Two of this Article shall, upon recovery, be subject to criminal liability and punishment if the limitation periods for bringing them to criminal liability or for executing the conviction have not expired.
In accordance with the principles of humanism and justice, as well as the purposes of punishment, the Criminal Code of the Republic of Kazakhstan permits exemption from punishment or from further serving a sentence for persons: a) who, after committing a criminal offence, develop a mental disorder that deprives them of the ability to understand the actual nature and social danger of their actions (omissions) or to control them (Part 1 of Article 75 of the Criminal Code); b) who suffer from another serious illness that prevents them from serving their sentence, except for life imprisonment (Part 2 of Article 75 of the Criminal Code).
Due to the different nature of these illnesses, Article 75 of the Criminal Code provides for different conditions for exempting persons who develop such illnesses after committing a criminal offence from punishment. However, the grounds for exempting persons from punishment due to illness under Article 75 of the Criminal Code are the same, whether a mental disorder develops or the person contracts another serious illness: the impossibility of achieving the purposes of punishment provided for in Part 2 of Article 39 of the Criminal Code.
Where a person develops a mental disorder after committing a criminal offence, the impossibility of achieving the purposes of punishment is explained by the fact that the mental disorder deprives the person of the ability to understand the actual nature and social danger of their actions (omissions) or to control them. Consequently, exerting corrective and preventive influence on such a person is futile.
A person suffering from a mental disorder is incapable of perceiving the corrective influence exerted on them, which constitutes the substance of punishment, and therefore the court releases that person from punishment. Moreover, when a person is exempted from punishment due to a mental disorder that has developed, neither the category and severity of the criminal offence committed, nor the type and duration of the punishment imposed, nor the amount of the sentence already actually served, nor the nature of the convicted person's post-offence conduct, nor any other circumstances are relevant. Regardless of these circumstances, a person who develops a mental disorder after committing a criminal offence shall be exempted from punishment by a court at any time.
The Supreme Court of the Republic of Kazakhstan adheres to a similar position. Thus, Paragraph 2 of its Regulatory Resolution dated 11 April 2002, “On Release from Further Serving a Sentence and Replacement of the Unserved Part of a Sentence with a More Lenient Type of Punishment Due to Illness,” emphasizes:
“A person shall be subject to release from serving a sentence due to the onset of a mental disorder regardless of the severity of the criminal offence committed, the term of the sentence imposed, the length of the unserved part of the sentence, the degree of the convicted person's rehabilitation, and other circumstances. The release of such a person from punishment is mandatory, and the court shall not consider the aforementioned issues.
A person released from serving a sentence due to a mental disorder may, pursuant to Subparagraph 2) of Part One of Article 91 of the Criminal Code, simultaneously be subjected to compulsory medical measures provided for in Article 93 of the Criminal Code.
At the same time, compulsory medical measures shall be imposed only where the pathological mental disorders are associated with the possibility that these persons may cause other substantial harm or pose a danger to themselves or other persons.”
Paragraph 8 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan “On the Court Judgment” also emphasizes that, in accordance with Part Six of Article 393 of the Criminal Procedure Code, a guilty verdict imposing criminal punishment while exempting the person from serving it shall be rendered if the circumstances provided for by law have been established during the court hearing, namely:
“...A mental disorder that deprives a person of the ability to understand the actual nature and social danger of their actions (omissions) or to control them, which develops after the commission of a criminal offence but before the judgment is rendered in a case submitted to the court with an indictment, shall also constitute, pursuant to Part One of Article 75 of the Criminal Code, a circumstance rendering the person guilty of committing the criminal offence incapable of serving the sentence. In such cases, the court shall render a guilty verdict imposing a sentence while exempting the person from serving it. At the same time, the court shall decide whether it is necessary to apply the compulsory medical measures provided for in Article 93 of the Criminal Code.
In cases where an act prohibited by criminal law was committed by a person in a state of insanity, or where a person develops a mental disorder after the judgment has been rendered that makes it impossible to execute the punishment, the court shall issue a ruling pursuant to Part One of Article 521 of the Criminal Procedure Code.”
The type of compulsory medical measure shall be selected by the court on the basis of the opinion of psychiatrists, taking into account the nature and depth of the mental disorder, the degree of public danger posed by the person who developed the mental disorder while serving the sentence, the possibility of that person causing new substantial harm, and their need for treatment.
Where, after committing a criminal offence, a person develops another serious illness that prevents them from serving their sentence, the grounds for exempting such a person from punishment are likewise the impossibility of achieving the purposes of punishment. In this case, the impossibility of achieving the purposes of punishment is explained by the fact that the serious illness that has developed, just like a mental disorder, prevents the person from serving the sentence. However, unlike the situation involving the onset of a mental disorder, the person is subjectively capable of understanding the corrective influence exerted on them, but the serious illness, on the one hand, prevents the convicted person from serving the sentence and fulfilling all the obligations imposed on them as a convicted person during the period of serving the sentence and, on the other hand, prevents the bodies responsible for executing punishment from carrying out the sentence imposed in respect of that particular person who developed a serious illness after committing the criminal offence.
It should also be noted that exemption from punishment due to another serious illness is also an expression of the principles of humanism and justice towards the convicted person, since, by releasing the person from punishment, the court thereby gives them the opportunity to take the necessary measures for treatment rather than compelling them to serve the full sentence imposed for the criminal offence committed.
Paragraph 3 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan “On Release from Further Serving a Sentence and Replacement of the Unserved Part of a Sentence with a More Lenient Type of Punishment Due to Illness” states:
“A person suffering from another illness shall be released by a court from serving a sentence in accordance with Part Two of Article 75 of the Criminal Code only if the illness established by the medical commission is included in the List of Diseases Constituting Grounds for Release from Serving a Sentence, approved by Order No. 530 of the Minister of Internal Affairs of the Republic of Kazakhstan dated 19 August 2014.”
In my opinion, this list should be established by law or, at the very least, approved by a Resolution of the Government of the Republic of Kazakhstan.
The presence of a serious illness in a convicted person and the resulting impossibility of further serving the sentence shall be established by an opinion issued by a special medical commission following thorough medical examinations of the patient, confirming that the treatment administered has been unsuccessful.
A person suffering from another serious illness that prevents them from serving their sentence, except for life imprisonment, may be released by a court from serving the sentence, or the sentence may be replaced with a more lenient type of punishment, as stated in Paragraph 5 of the aforementioned Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan. This position of the Supreme Court contradicts Part 2 of Article 75 of the Criminal Code insofar as it uses the wording “may be released.” Thus, Part 2 of the Article under consideration states that a person suffering from another serious illness that prevents them from serving their sentence, except for life imprisonment, shall be released by a court from serving the sentence. As for the Supreme Court of the Republic of Kazakhstan's wording, “...or the sentence may be replaced with a more lenient type of punishment,” this is consistent with Part 2 of the Article under consideration. I believe that the Supreme Court should bring the wording “may be released” into conformity with criminal legislation.
Subparagraph 1) of Part 1 of Article 475 of the Criminal Procedure Code also states that the execution of a judgment sentencing a person to community service, corrective labour, restriction of liberty or imprisonment may be postponed if the convicted person has a serious illness that prevents them from serving the sentence, until their recovery.
Part 2 of Article 75 of the Criminal Code uses the wording “shall be released,” whereas Subparagraph 1) of Part 1 of Article 475 of the Criminal Procedure Code uses the wording “may be.” The issue should be resolved in favour of Part 2 of Article 75 of the Criminal Code.
Replacement with a more lenient type of punishment is possible if the nature of the illness does not prevent the convicted person from serving a more lenient type of punishment (in accordance with the types of punishment specified in Article 40 of the Criminal Code).
At the same time, it is necessary to take into account the severity of the crime committed, the term of the sentence already served, the health condition of the convicted person, information characterizing their personality, the degree of their rehabilitation, and the extent to which the illness prevents them from serving the sentence imposed. Replacement of the unserved part of a sentence with a suspended sentence or reduction of its term is not permitted.
Attention should be drawn to the fact that exemption from punishment due to illness applies only to persons in whom the grounds for exemption arose after the commission of the crime. If, for example, a mental disorder existed at the time the criminal offence was committed, the issue to be resolved is not exemption from punishment, but the absence of the elements of a criminal offence due to the insanity of the person who committed the socially dangerous act.
It should be recalled that, pursuant to Part 1 of Article 16 of the Criminal Code, a person who, at the time of committing a socially dangerous act, was in a state of insanity, that is, was unable to understand the actual nature and social danger of their actions (omissions) or to control them due to a chronic mental illness, temporary mental disorder, intellectual disability or another pathological condition of the mind, shall not be subject to criminal liability. Therefore, upon establishing the aforementioned circumstance, the court releases the person from punishment or from further serving the sentence and may simultaneously impose compulsory medical measures provided for in Article 93 of the Criminal Code pursuant to Subparagraph 2) of Part 1 of Article 91 of the Criminal Code.
With respect to persons who develop another serious illness while serving their sentence, provision is made not only for exemption from the original punishment but also for the possibility of replacing it with a more lenient type of punishment.
In accordance with Parts 5 and 6 of Article 162 of the Penal Enforcement Code of the Republic of Kazakhstan and Part 3 of Article 478 of the Criminal Procedure Code of the Republic of Kazakhstan, the issue of releasing a person from further serving a sentence due to illness shall be considered by the court upon the convicted person's petition or upon a submission from the institution or body executing the punishment.
Part 5 of Article 162 of the Penal Enforcement Code states that a submission for release from serving a sentence due to a mental disorder shall be filed with the court by the head of the institution or body executing the punishment. The medical commission's opinion and the convicted person's personal file shall be submitted together with the submission.
Part 6 of Article 162 of the Penal Enforcement Code states that a submission for release from serving a sentence or replacement of the unserved part of a sentence with a more lenient type of punishment due to a serious illness shall be filed with the court by the head of the institution or body executing the punishment. The medical commission's opinion and the convicted person's personal file shall be submitted to the court together with the submission. The submission must contain information characterizing the convicted person's conduct while serving the sentence.
Pursuant to Part 3 of Article 478 of the Criminal Procedure Code, the issues specified in Subparagraphs 4), 7), 9), 11), 13), 15) and 17) of Article 476 of the Criminal Procedure Code shall be considered by the court either upon the convicted person's petition or upon a submission from the institution or body executing the punishment.
The submission of the administration of the institution or body executing the punishment must contain information about the convicted person and the nature of the illness from which they suffer, and, in respect of a person suffering from another serious illness, information about the severity of the criminal offence committed by them, their personality, and their conduct during the period of serving the sentence.
The administration's submission (the convicted person's petition) for release from further serving a sentence must be accompanied by the relevant documents on the basis of which the court is to make its decision: a medical opinion, an extract from a copy of the judgment, an extract from the List of Diseases, as well as documents confirming the actual term of the sentence served, the convicted person's conduct while serving the sentence, and other information characterizing the person.
The convicted person's personal file shall be submitted to the court together with the administration's submission (the convicted person's petition), and its materials shall be examined during the court hearing.
In order to verify the reliability of the presence in a convicted person of a disease specified in the List of Diseases constituting grounds for submitting the person for release from serving a sentence due to illness, the head of the institution or body executing the punishment shall, pursuant to a decision of the medical advisory commission of the medical and preventive treatment institution, refer the convicted person for examination by the Special Medical Commission.
The examination of the convicted person and the issuance of an opinion shall be carried out by the Special Medical Commission in accordance with Article 162 of the Penal Enforcement Code and the Rules for Medical Examination of Convicted Persons Submitted for Release from Serving a Sentence Due to Illness, approved by Order No. 530 of the Minister of Internal Affairs of the Republic of Kazakhstan dated 19 August 2014.
Pursuant to Part 7 of Article 162 of the Penal Enforcement Code, recognition as a person with a first- or second-group disability of an individual serving a sentence in the form of community service, corrective labour or restriction of liberty constitutes grounds for submitting to the court a proposal for early release of that person from further serving the sentence or for replacing it with a more lenient type of punishment.
A court's refusal to release a person from further serving a sentence due to illness shall not prevent the reconsideration of this issue upon a repeated submission by the administration or a petition by the convicted person.
In respect of convicted persons whose release from serving a sentence due to illness has been refused by the court, if their health condition deteriorates and the illness prevents them from serving the sentence, the materials shall be resubmitted to the court on the basis of an appropriate medical opinion, regardless of when the court issued its ruling refusing release.
The court is always obliged to thoroughly verify the validity of the medical opinion and the results of inpatient treatment in order to prevent the release from punishment of a person who is not subject to release from further serving the sentence.
The medical opinion must reflect the person's mental condition while serving the criminal sentence imposed by the court's judgment, as well as the nature and depth of the mental disorder, information on whether, taking into account the identified illness, the person poses a danger to themselves or other persons, whether they are capable of causing other substantial harm, whether they require the application of a compulsory medical measure and, if so, which specific measure; and whether, taking into account the nature and severity of the illness, the person is capable of exercising the rights provided for in Part 6 of Article 478 of the Criminal Procedure Code.
In respect of a person suffering from another serious illness, the medical opinion must specify the nature of the illness, the treatment administered, information confirming that inpatient treatment has not produced positive results, that the illness has irreversible consequences and is progressing, and that, as a result, it prevents further serving of the sentence.
If doubts arise regarding the validity of the medical opinion, the court shall have the right to order the necessary expert examination.
Supervision over the conduct of a person released from further serving a sentence due to a mental disorder or another serious illness shall be carried out by the institutions or bodies executing the punishment.
In accordance with Part 3 of Article 75 and Article 97 of the Criminal Code, if a person suffering from a mental disorder or another serious illness recovers, after the circumstances preventing the serving of the sentence have ceased to exist, the execution of the sentence against that person shall be resumed, provided that the limitation periods for executing the conviction provided for in Articles 71, 77 and 88 of the Criminal Code have not expired, or there are no grounds for exempting that person from criminal liability and punishment.
The fact of a person's recovery shall be established by an opinion of the relevant medical commission, which must be thoroughly examined by the court.
The period during which compulsory medical measures were applied to a person shall be credited towards the term of the sentence at the rate of one day spent in a psychiatric inpatient facility for one day of imprisonment.
Resumption of the execution of the sentence shall be carried out on the basis of a court ruling upon submission by the institution or body executing the punishment.
A person suffering from another serious illness who is serving a sentence of life imprisonment shall not be subject to release from serving the sentence pursuant to Part 2 of Article 75 of the Criminal Code. This punishment cannot be replaced with a more lenient type of punishment, even if the illness prevents the person from serving the sentence. In my opinion, from the perspective of humanity and humaneness, this is an issue that the legislator should give further consideration to.
If a person released from further serving a sentence due to illness commits a criminal offence, that person shall be subject to a mandatory examination by a medical commission in order to establish whether recovery has occurred.
If a person released from further serving a sentence due to illness commits a new criminal offence before recovering, that person shall be held liable only for the new criminal offence, and the unserved part of the sentence under the previous judgment shall not be added to the punishment imposed under the subsequent judgment. The rules of Article 60 of the Criminal Code shall not apply in this case.
If a person commits a new criminal offence after recovery and after the circumstances preventing the serving of the sentence have ceased to exist, then, in accordance with Part 1 of Article 60 of the Criminal Code, the unserved part of the sentence under the previous judgment shall be added, in whole or in part, to the punishment imposed for the new criminal offence, provided that there is a court ruling on resumption of the execution of the sentence under the previous judgment.
Pursuant to Paragraph 19 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan “On Release from Further Serving a Sentence and Replacement of the Unserved Part of a Sentence with a More Lenient Type of Punishment Due to Illness,” a court ruling on the release of a person from further serving a sentence or replacement of the unserved part of a sentence with a more lenient type of punishment due to illness may be reviewed under the appellate procedure.
Commentary of 2021 on the Criminal Code of the Republic of Kazakhstan by Isidor Shamilovich Borchashvili, Honoured 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, Honoured Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.
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