Commentary on Article 76. Exemption from Punishment and Postponement of Serving a Sentence Due to a Combination of Difficult Circumstances of the Criminal Code of the Republic of Kazakhstan
1. A person convicted of a criminal misdemeanor or a crime of minor or medium gravity may be exempted from punishment by a court if circumstances have arisen that have resulted in particularly grave consequences for their family as a result of a fire or natural disaster, a serious illness or the death of the only able-bodied family member, or other extraordinary circumstances.
2. A person sentenced to imprisonment for a grave or particularly grave crime, with the exception of persons convicted of a terrorist or extremist crime, or a crime committed as part of a criminal group or against the sexual inviolability of minors, may, where the grounds specified in paragraph one of this Article exist, have the serving of their sentence postponed by the court for a period of up to three months.
The restriction on postponement of the serving of a sentence shall not apply to minors in cases where a crime has been committed against a minor aged between fourteen and eighteen years.
The position of the legislator, which provides for the criminal law provision entitled “exemption from punishment and postponement of the serving of a sentence” in the Criminal Code of the Republic of Kazakhstan (Article 76 of the Criminal Code), should be regarded as humane and fair.
Pursuant to paragraph 1 of the Article under consideration, a person convicted of a criminal misdemeanor or a crime of minor or medium gravity may be exempted from punishment by a court if circumstances have arisen that have resulted in particularly grave consequences for their family as a result of a fire or natural disaster, a serious illness or the death of the only able-bodied family member, or other extraordinary circumstances. This list of circumstances is not exhaustive. Paragraph 1 of Article 76 of the Criminal Code may also be applied in the presence of other circumstances similar to those listed.
For the application of paragraph 1 of Article 76 of the Criminal Code, the following conditions must be met:
the person must have been convicted of a criminal misdemeanor or a crime of minor or medium gravity;
extraordinary circumstances must have arisen as a result of a fire, natural disaster, serious illness, the death of the only able-bodied family member, or other extraordinary circumstances, which have resulted in particularly grave consequences for their family.
It should be borne in mind that the application of paragraph 1 of the Article under consideration to a convicted person in the presence of the specified grounds is a right, rather than an obligation, of the court. The law does not make the possibility of applying Article 76 of the Criminal Code dependent on the type of punishment imposed on the convicted person. This means that this provision may be applied to a person sentenced to a fine, community service, arrest, imprisonment, and other types of punishment provided for in Article 40 of the Criminal Code.
Paragraph 8 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan “On the Court Judgment” states that, pursuant to paragraph 6 of Article 393 of the Criminal Procedure Code, a guilty verdict imposing criminal punishment and exempting the person from serving that punishment shall be issued if the circumstances prescribed by law have been established during the court hearing. In particular, a guilty verdict imposing criminal punishment and exempting the person from serving that punishment in respect of a person who has committed a criminal misdemeanor or a crime of minor or medium gravity may also be issued where extraordinary circumstances have arisen that have resulted in particularly grave consequences for members of their family (paragraph 1 of Article 76 of the Criminal Code).
It should also be borne in mind that, whereas paragraph 1 of the Article under consideration provides for the possibility of a court exempting a person who has committed a criminal misdemeanor or a crime of minor or medium gravity from serving their sentence, paragraph 2 of the Article under consideration provides for the possibility of the court postponing the sentence imposed. When delivering a guilty verdict for a grave or particularly grave crime, if extraordinary circumstances have arisen by the time the verdict is delivered and the conditions for applying this provision specified in paragraph 2 of the Article under consideration are met, the court shall indicate in the verdict that the convicted person is granted a postponement of the serving of the sentence for the period established by law (up to 3 months) and, in connection therewith, shall release the defendant from custody. Since the legislator has determined that a postponement may be granted for a period of up to three months, the court may postpone the serving of the sentence, for example, for 1 or 2 months.
Pursuant to subparagraph 3) of paragraph 1 of Article 475 of the Criminal Procedure Code, the execution of a judgment sentencing a person to community service, corrective labour, restriction of liberty, or imprisonment may be postponed where immediate serving of the sentence may entail grave consequences for the convicted person or their family due to a fire or natural disaster, a serious illness or the death of the only able-bodied family member, or other extraordinary circumstances — for a period established by the court, but not exceeding six months, and in respect of persons specified in paragraph 2 of Article 76 of the Criminal Code of the Republic of Kazakhstan, not exceeding three months.
For the application of a postponement in accordance with paragraph 2 of the Article under consideration, the following grounds must be present:
the person must have been sentenced to imprisonment for a grave or particularly grave crime, with the exception of persons convicted of a terrorist or extremist crime, or a crime committed as part of a criminal group or against the sexual inviolability of minors;
extraordinary circumstances in the form of a fire, natural disaster, serious illness, the death of the only able-bodied family member, or other extraordinary circumstances must have arisen and resulted in particularly grave consequences for their family;
the postponement of the serving of the sentence shall be granted for a period of up to three months.
Natural disasters may include, for example, earthquakes and floods.
Particularly grave consequences that have arisen for the convicted person's family as a result of extraordinary circumstances may include the absence of housing and a lack of funds for food.
Pursuant to paragraph 4 of Article 11 of the Criminal Code, grave crimes are intentional acts for which the maximum punishment provided for by the sanction of an Article of the Criminal Code does not exceed twelve years of imprisonment.
Particularly grave crimes are intentional crimes for which the Criminal Code provides for punishment in the form of imprisonment for a term exceeding twelve years, life imprisonment, or the death penalty (paragraph 5 of Article 11 of the Criminal Code).
Where the grounds specified in the law exist, the court may refuse to apply the type of postponement of the serving of a sentence under consideration. In other words, the application of this provision is a right of the court, but not an obligation. In this case, the court should take into account the danger that may be posed to the public by releasing from custody a person who is required to serve, for example, a lengthy term of imprisonment, as well as the possibility of that person evading the serving of the sentence.
Paragraph 13 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan “On the Court Judgment” states that a guilty verdict imposing punishment and postponing the serving of the sentence on the basis of paragraph 2 of Article 76 of the Criminal Code, subject to the restrictions established by this provision, shall be issued in respect of persons who have committed grave and particularly grave crimes where particularly grave consequences have arisen for members of their family as a result of extraordinary circumstances.
At the same time, courts should bear in mind that the existence of at least one of the grounds provided for in paragraph 2 of Article 76 of the Criminal Code obliges them to consider and resolve the issue of postponing the serving of the sentence, stating the reasons for their decision.
Postponement of the serving of a sentence shall not apply to a person convicted of:
a terrorist crime;
an extremist crime;
a crime committed as part of a criminal group;
a crime against the sexual inviolability of minors.
The restriction on postponement of the serving of a sentence shall not apply to minors in cases where a crime has been committed against a minor aged between fourteen and eighteen years.
The list of terrorist crimes is set out in subparagraph 30) of Article 3 of the Criminal Code; the list of extremist crimes is set out in subparagraph 39) of Article 3 of the Criminal Code; the concept of a criminal group is defined in the commentary to subparagraph 24) of Article 3 of the Criminal Code; the list of crimes against the sexual inviolability of minors is set out in subparagraph 42) of Article 3 of the Criminal Code (see the commentary on Article 3 of the Criminal Code).
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 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 the Reform of the Law Enforcement System under the Security Council of the Republic of Kazakhstan, Honoured Worker of the Ministry of Internal Affairs of the Republic of Kazakhstan.
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