Commentary on Article 77. Release from Serving a Sentence Due to the Expiration of the Limitation Period for the Execution of a Conviction under the Criminal Code of the Republic of Kazakhstan
1. A person convicted of a criminal offense shall be released from serving the sentence if the conviction has not been enforced within the following periods, calculated from the date on which it entered into legal force:
1) one year for conviction of a criminal misdemeanor;
2) two years for conviction of a minor crime;
3) five years for conviction of a crime of medium gravity;
4) ten years for conviction of a serious crime;
5) fifteen years for conviction of an especially serious crime.
2. The running of the limitation periods for criminal misdemeanors shall neither be suspended nor interrupted, regardless of whether a new criminal offense is committed.
3. The running of the limitation period for crimes shall be suspended if the convicted person evades serving the sentence. In this case, the running of the limitation period shall resume from the moment the person is detained or voluntarily surrenders. The limitation periods that have elapsed by the time the convicted person begins evading the serving of the sentence shall be credited. At the same time, a conviction may not be enforced if twenty years have elapsed since the date of its pronouncement and the limitation period has not been interrupted by the commission of a new crime. In the event that the serving of a sentence is deferred, the running of the limitation period shall be suspended until the expiration of the deferment period.
4. The running of the limitation period for crimes shall be interrupted if, before the expiration of the periods specified in Part One of this Article, the person commits a new intentional crime. In such cases, the calculation of the limitation period shall begin anew from the date of commission of the new crime.
5. The question of applying the limitation period to a person sentenced to the death penalty or life imprisonment shall be decided by the court. If the court finds it impossible to apply the limitation period, the death penalty shall be replaced by life imprisonment, and life imprisonment shall be replaced by imprisonment for a term of twenty-five years. Limitation periods shall not apply to persons convicted of crimes against the sexual inviolability of minors, except in cases where such a crime is committed by a minor against another minor aged fourteen to eighteen years; crimes against the peace and security of humanity; corruption crimes; terrorist crimes; extremist crimes; torture; as well as especially serious crimes against the individual, the foundations of the constitutional order and state security, and in the sphere of economic activity.
In cases where a conviction is not enforced for a relatively long or short period of time, its enforcement, as a general rule, becomes impractical from the standpoint of both special and general prevention. Therefore, under certain conditions established by Article 77 of the Criminal Code, the application of a sentence imposed in the past becomes unnecessary.
The reasons for failure to enforce a conviction may vary considerably: negligent work by the court registry or by employees of the authorities responsible for administering the relevant type of punishment or arranging the transportation of convicted persons to penal institutions, etc. However, most often, a conviction is not enforced as a result of the convicted person's evasion of punishment.
The limitation period for the execution of a conviction means the expiration of the periods established by law, after which a conviction handed down by a court may no longer be enforced and, as a result, the convicted person is released from serving the sentence.
The basis for such release is not only the passage of time but also the degree of public danger and the gravity of the criminal offense committed. Therefore, the duration of the limitation period for the execution of a conviction depends on the criminal offense and the category of the crime.
Pursuant to Part 1 of Article 77 of the Criminal Code, a person convicted of a criminal offense shall be released from serving the sentence if the conviction has not been enforced within the following periods, calculated from the date on which it entered into legal force:
one year for conviction of a criminal misdemeanor;
three years for conviction of a minor crime;
six years for conviction of a crime of medium gravity;
ten years for conviction of a serious crime;
fifteen years for conviction of an especially serious crime.
Release from the execution of a sentence may occur only on the condition that the running of the limitation period established by law has not been disrupted and that the convicted person, while at liberty, has not evaded serving the sentence.
The running of the limitation periods for criminal misdemeanors shall neither be suspended nor interrupted, regardless of whether a new criminal offense is committed (Part 2 of Article 77 of the Criminal Code).
In accordance with Part 3 of Article 77 of the Criminal Code, the running of the limitation period for crimes shall be suspended if the convicted person evades serving the sentence. In this case, the running of the limitation period shall resume from the moment the person is detained or voluntarily surrenders. The limitation periods that have elapsed by the time the convicted person begins evading the serving of the sentence shall be credited. At the same time, a conviction may not be enforced if twenty-five years have elapsed since the date of its pronouncement and the limitation period has not been interrupted by the commission of a new crime. In the event that the serving of a sentence is deferred, the running of the limitation period shall be suspended until the expiration of the deferment period. In this regard, it is irrelevant whether the crime committed by the convicted person was intentional or negligent.
Upon expiration of the limitation period for the execution of a conviction, release from serving the sentence shall be mandatory and shall not be left to the discretion of the court, since this is not a right but an obligation of the court.
Part 4 of Article 77 of the Criminal Code provides for the interruption of the limitation period for the execution of a conviction, which may occur when the convicted person commits a new intentional crime. In the event of the commission of a new intentional crime, the calculation of the limitation period shall begin anew from the date of commission of the new crime. The time elapsed from the moment the conviction in the previous case entered into legal force until the commission of this new crime shall not be credited toward the limitation period.
The question of applying the limitation period to a person sentenced to the death penalty or life imprisonment shall be decided by the court. If the court finds it impossible to apply the limitation period, the death penalty shall be replaced by life imprisonment, and life imprisonment shall be replaced by imprisonment for a term of twenty-five years.
Limitation periods shall not apply to persons convicted of crimes against the sexual inviolability of minors, except in cases where such a crime is committed by a minor against another minor aged fourteen to eighteen years; crimes against the peace and security of humanity; corruption crimes; terrorist crimes; extremist crimes; torture; as well as especially serious crimes against the individual, the foundations of the constitutional order and state security, and in the sphere of economic activity.
In accordance with Paragraph 42) of Article 3 of the Criminal Code, crimes against the sexual inviolability of minors include acts provided for in Articles 120, 121, 122, 123, 124, 134 and 144, and Parts 2 and 3 of Article 312 of the Criminal Code.
Crimes against the peace and security of humanity include acts for which liability is provided under Articles 164–174 of the Criminal Code.
Corruption crimes include acts provided for in Paragraph 29) of Article 3 of the Criminal Code.
The exhaustive list of terrorist crimes is established in Paragraph 30) of Article 3 of the Criminal Code, while the exhaustive list of extremist crimes is established in Paragraph 39) of Article 3 of the Criminal Code.
Torture includes crimes for which liability is provided under Article 146 of the Criminal Code.
Especially serious crimes against the individual include acts for which liability is provided under Article 99; Parts 3, 3-1, 3-2 and 4 of Article 120; Parts 3, 3-1, 3-2 and 4 of Article 121; Part 3 of Article 122; Part 3 of Article 124; Part 3 of Article 125; and Part 4 of Article 128 of the Criminal Code.
Especially serious crimes against the foundations of the constitutional order and state security include acts for which liability is provided under Articles 175–178, Part 3 of Article 179, Part 3 of Article 180, Article 181, Parts 1 and 3 of Article 182, and Part 1 of Article 184 of the Criminal Code.
As for the legislator's reference in Part 5 of Article 77 of the Criminal Code to especially serious crimes in the sphere of economic activity, this reference is erroneous, since Chapter 8 of the Criminal Code, which provides for liability for the commission of economic criminal offenses, does not contain a single article establishing criminal liability for especially serious crimes. Consequently, the legislator should remove the words “economic activity” from Part 5 of Article 77 of the Criminal Code.
Release from serving a sentence due to the expiration of the limitation period for the execution of a conviction is final and may not be revoked on any grounds.
Commentary on the Criminal Code of the Republic of Kazakhstan, 2021, 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.
Constitution Law Code Regulatory Act Decree Order [Decision] Lawyer Almaty Lawyer Legal Service Legal Consultation Civil Criminal Administrative Cases and Disputes Defense Arbitration Legal Company of Kazakhstan Law Office Court Cases Declaration Decree Order Resolution Decision Report Conclusion Application Conclusion Convention Contract Memorandum Methodology Norms Note Rules Program Charter Charter Article Commentary Resolution Regulation Protocol Draft Program Rules Messages
