Commentary to article 38. The concept and objectives of punishment The Criminal Code of the Republic of Kazakhstan of the Criminal Code of the Republic of Kazakhstan

     1. Punishment is a measure of State coercion imposed by a court verdict. The punishment is applied to a person found guilty of committing a crime and consists in the deprivation or restriction of the rights and freedoms of this person provided for in this Code.      

2. Punishment is applied for the purpose of restoring social justice, as well as correcting the convicted person and preventing the commission of new crimes by both the convicted person and others. Punishment is not intended to cause physical suffering or humiliate human dignity.      

Criminal punishment and, in general, its appointment causes the greatest complexity and problemativeness not only in criminal law science, but also in law enforcement practice, because it acts as one of the main forms of implementation of the state's criminal policy in the fight against crime.      

In this regard, the contents of this article are addressed to both the legislator and the law enforcement officer. When establishing responsibility for crimes committed, the legislator is obliged to proceed from the principles of criminal law and the purposes of punishment. In turn, the law enforcement officer should proceed from the provisions of the Constitution of the Republic of Kazakhstan on the equality of all before the law and the court, and considering that no one can be found guilty of committing a crime and subjected to criminal punishment except by a court verdict.      

In accordance with Part 1 of Article 38 of the Criminal Code of the Republic of Kazakhstan, punishment is a measure of state coercion imposed by a court verdict.       The concept of punishment as a measure of state coercion is a way of influencing a convicted person in strict accordance with the norms of criminal law. The State nature of the coercive measure acts as a guarantee that the punishment will be lawful, justified by the case materials, fair and evidence of the inevitability of responsibility for the crime committed. Only a court can impose punishment for a committed crime after the guilt of a person is established during the trial. The convicted person may be restricted in freedom, labor and other rights stipulated by the Constitution of the Republic of Kazakhstan.       Since criminal punishment is a reaction of the State to a crime, it must pursue certain goals. It follows from the content of Part 2 of Article 38 of the Criminal Code of the Republic of Kazakhstan that this is, first of all, the restoration of social justice, the correction of the convict, the prevention of the commission of new crimes, both by convicts and others. Punishment is not intended to cause physical suffering or humiliate human dignity.      

The restoration of social justice through the application of punishment to the convicted person is carried out in relation to society as a whole and the victim in particular. It is restored in the form of partial compensation to the State for damage in the form of a fine, confiscation of property, performance of correctional labor and other types of punishment. In relation to the victim, social justice is restored by protecting his rights and freedoms in court, compensating for the harm caused, and punishing the convicted person in proportion to the suffering that the victim was forced to endure by virtue of the crime committed.      

The correction of the convicted person corresponds to the purpose of the special warning. And it represents such positive changes in the behavior of a convicted person when he does not commit new crimes. The purpose of correcting a convicted person is not aimed at achieving such a result as his re-education.      

The prevention of the commission of a crime by other persons is addressed by the legislator to those who did not commit a crime, to whom punishment was not applied, and is a demonstration to them of the threat of the inevitability of punishment.       

The State, defining the concept and objectives of punishment, establishes that the execution of punishment should not cause physical suffering or humiliate human dignity to the convicted person. This shows the humanism of the criminal policy of the state, which has proclaimed man, his life, rights and freedoms as the highest values.

Commentary from 2007 to the Criminal Code of the Republic of Kazakhstan from the Honored Worker of Kazakhstan, Doctor of Law, Professor, Academician of the Kazakhstan National Academy of Natural Sciences BORCHASHVILI I.Sh.                  

Date of amendment of the act:  08/02/2007 Date of adoption of the act:  08/02/2007 Place of acceptance:  NO Authority that adopted the act: 180000000000 Region of operation:  100000000000 NPA registration number assigned by the regulatory body:  167 Status of the act:  new Sphere of legal relations:  028000000000 Report form:  COMM Legal force:  1900 Language of the Act:  rus

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