Commentary to article 43. Correctional work of the Criminal Code of the Republic of Kazakhstan of the Criminal Code of the Republic of Kazakhstan

     1. Correctional labor is established for a period of two months to two years and is served at the place of work of the convicted person.      

2. Deductions from the earnings of a person sentenced to correctional labor shall be made to the state income in the amount established by a court verdict, ranging from five to twenty percent.      

3. Correctional labor may not be assigned to persons who are recognized as unable to work, who do not have a permanent job or who study in educational institutions on an on-the-job basis. The court may impose a fine on such persons instead of correctional labor based on the amount of the fine equal to one monthly calculation index established by law for one month of correctional labor, if the sanction of the relevant article of the Special Part of this Code does not provide for a fine. The court may also replace correctional labor with a fine if the specified circumstances arose during the period of serving the sentence.      

4. In case of malicious evasion from serving a sentence by a person sentenced to correctional labor, the court may replace the unserved term of correctional labor with punishment in the form of restriction of liberty, arrest or imprisonment for the same period.      

The Institute of Correctional Works has been repeatedly changed and improved. The current Criminal Code of the Republic of Kazakhstan has changed the name of this type of punishment and thus clarified its legal nature; serving the sentence is limited to the place of work of the convicted person; new grounds and procedures for replacing the type of punishment in question with more severe types of punishment have been introduced.      

Correctional labor may be imposed only as the main punishment in cases where it is provided for by the sanction of the article of the Special Part of the Criminal Code of the Republic of Kazakhstan. Correctional labor presupposes that the convicted person must have a permanent place of work and engage in labor activity during the period established by the court verdict.      

Correctional labor under current criminal law is the involvement of a convicted person in labor with a deduction of a certain part of his earnings to the state income. According to Part 1 of Article 43 of the Criminal Code of the Republic of Kazakhstan, correctional labor is established for a period of two months to two years and is served at the place of work of the convicted person.      

Deductions are made from the earnings of a convicted person to the state income in the amount established by a court verdict, ranging from five to twenty percent (Part 2 of Article 43 of the Criminal Code of the Republic of Kazakhstan).      

According to Part 3 of Article 43 of the Criminal Code of the Republic of Kazakhstan, correctional labor cannot be assigned to persons who are recognized as legally unable to work, who do not have a permanent place of work or who are studying in educational institutions, on-the-job. These circumstances must be taken into account by the court when imposing punishment, and if, due to these circumstances, correctional labor cannot be imposed, then instead the court may impose a fine based on the amount of the fine equal to one monthly calculation index established by law for one month of correctional labor, if the sanction of the criminal law, according to which the crime is qualified, the fine as punishment not provided. In fact, the imposition of a fine instead of correctional labor with a fine at the stage of sentencing and during the period of serving the sentence is, as it were, a specific substitution of one type of punishment for another more lenient punishment.      

According to Part 4 of Article 43 of the Criminal Code of the Republic of Kazakhstan, correctional labor in case of malicious evasion by the court that issued the verdict on the recommendation of the penitentiary inspectorate, the unserved term of correctional labor is replaced by a more severe punishment - restriction of liberty, arrest, imprisonment for the same period.  The court's decision will depend on several factors: the severity of the crime for which the person was sentenced to correctional labor; the circumstances of malicious evasion from serving the sentence; the behavior of the convicted person, etc.      

In accordance with Article 42 of the Criminal Code of the Republic of Kazakhstan, a person who has committed repeated violations of the procedure and conditions for serving a sentence of correctional labor after receiving a written warning for any of the violations specified in Article 42 of the Criminal Code of the Republic of Kazakhstan, as well as a person who has fled his place of residence, whose whereabouts are unknown, is considered to be maliciously evading serving a sentence of correctional labor.      

Correctional labor under Article 79 of the Criminal Code of the Republic of Kazakhstan may be assigned to minors. Correctional labor is assigned to minors who have reached the age of sixteen at the time of the court's sentencing, for a period of up to one year (Part 5 of Article 79 of the Criminal Code of the Republic of Kazakhstan).      

Correctional labor is served at the convicted person's main place of work (Part 1 of Article 36 of the Criminal Code of the Republic of Kazakhstan).      

The conditions of serving a sentence in the form of correctional labor are established by art. 37 of the Criminal Code of the Republic of Kazakhstan. A person sentenced to correctional labor must comply with the established procedure and conditions for serving his sentence, treat work in good faith, perform the duties assigned to him by the penitentiary inspectorate, and appear at the penitentiary inspectorate for registration twice a month.      

In accordance with Part 2 of Article 40 of the Criminal Code of the Republic of Kazakhstan, deductions from wages are made only at the main place of work, and independently of other deductions made according to executive documents. Deductions from social insurance and social security benefits and lump-sum payments are not made.      

The criminal law specifies deductions only from earnings, that is, from funds that the convicted person received as remuneration for his work, in this regard, the procedure for calculating the temporary disability allowance of a person sentenced to correctional labor, specified in paragraph 5 of Article 40 of the Criminal Code of the Republic of Kazakhstan, is in fact nothing more than deduction from the allowance. due to temporary disability, which, in our opinion, is unacceptable.      

In case of deterioration of the financial situation of the convicted person, he himself, the administration at his place of work or the penal enforcement inspectorate, which controls the execution of the sentence, has the right, in accordance with Part 1 of Article 40 of the Criminal Code of the Republic of Kazakhstan, to apply to the court with a request to reduce the amount of deduction established by the court verdict. In accordance with Article 454 of the Criminal Procedure Code of the Republic of Kazakhstan, this petition must be considered by the court that issued the verdict, with the mandatory participation of the convicted person. As a result, in fact, at the stage of execution of the sentence, there is a change in the sentence with mitigation of punishment, which is not provided for by criminal law, by reducing the amount of deduction from the earnings of the convicted person.

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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