Commentary to article 478. The procedure for resolving issues related to the execution of a sentence of the Criminal Procedure Code of the Republic of Kazakhstan

The court shall consider the issues specified in paragraphs 5), 16), 19) and 20) of Article 476 of this Code at the request of the convicted person.

Issues specified in paragraphs 1), 2), 3), 6), 8), 10), 12), 14) and 18) of Article 476 of this Code, are considered on the recommendation of the institution or body executing the punishment.

The issues specified in the paragraphs 4), 7), 9), 11), 13), 15) and 17) of Article 476 of this Code, are considered by the court at the request of the convicted person or on the recommendation of the institution or body executing the punishment.

The court considers issues related to the execution of the sentence individually in open court within one month from the date of receipt of the petition with the participation of the convicted person. Consideration of issues stipulated in paragraphs 1), 2), 3), 6), 7), 8), 10), 14) and 17) of Article 476 of this Code, may be carried out without the participation of the convicted person.

The issues specified in paragraph 5) of Article 476 of this Code may be considered by the court at the request of the Prosecutor General of the Republic of Kazakhstan or his deputy within the framework of a procedural cooperation agreement.

When the court considers issues related to the execution of sentences against convicted persons, the participation of a defender is mandatory in the cases provided for in the first part of Article 67 of this Code.

In cases where lawyers provide legal assistance to convicted persons on the basis of a court order, their work is paid in accordance with Article 68 of this Code.

When considering the issue of releasing a convicted person due to illness or placing him in a medical institution, the presence of a representative of the medical commission that gave the conclusion is mandatory, and in the case of a forensic medical or forensic psychiatric examination, the expert who gave the conclusion participates in the court session.

When declaring a search for a probationer, the court indicates in the decision the beginning of the suspension of the probation period and the moment of resumption of its course.

When considering the issue of conditional early release from serving a sentence, the victim may participate in the court session or his representative may be represented by him.

If the issue concerns the execution of a sentence in a civil claim, the civil plaintiff or his representative is also called to the court session. The failure of these persons to appear does not preclude the consideration of the case.

The prosecutor takes part in the court session.

The consideration of issues related to the execution of a sentence in court begins with the presentation of the relevant petition by the convicted person, the prosecutor or a representative of the institution or body executing the sentence. Then the submitted materials are examined, the explanations of the persons who appeared at the court session and the opinion of the prosecutor are listened to, after which the judge makes a decision in the conference room.

A protocol is kept during the court session.

1. Issues related to the execution of a sentence shall be considered within one month from the date of receipt of the petition/submission in an open court session with the mandatory keeping of minutes by the secretary of the court session. In almost all matters arising during the execution of the sentence, the court session is conducted by the judge alone.

2. The basis for holding a court session is the representation of the body responsible for the execution of punishment or the petition of the convicted person.

3. If the submitted materials do not contain sufficient data for their consideration and it is impossible to fill them in during the court session, the judge, when preparing the material for the hearing, returns it by letter for appropriate registration, and if this is revealed at the court session, then issues a resolution indicating the grounds on which the material is returned. They are subject to return without consideration and petition for the release of convicted persons who have not served the part of the sentence required by law.

4. When considering issues related to the execution of a sentence, the participation of the prosecutor, a representative of the body responsible for the execution of the sentence, as well as the convicted person, is mandatory, except in cases of consideration of issues that make it optional for the convicted person to participate in the court session: upon release from punishment due to illness with or without the use of compulsory medical measures; on crediting the time of detention and stay in a medical institution; on the extension, modification or termination of compulsory medical measures; on the clarification of all kinds of doubts and ambiguities during the execution of the sentence; on the termination of proceedings in connection with the death of the convicted person.

5. The law makes the participation of other persons dependent on the following circumstances and issues at the stage of execution of the sentence: a defense lawyer – from considering issues of execution of the sentence in relation to a minor or a person suffering from physical and mental disabilities, as well as a person who does not speak the language of the proceedings in the case; a representative of the medical commission that gave the conclusion – when considering issues of the release of a convicted person due to illness or placement in a medical institution; the victim or his representative – when considering the issue of conditional early release from punishment and the replacement of the unserved part of the punishment with a more lenient type of punishment.

In the absence of the victim or his representative at the court session, as well as a written statement (opinion) on the issue under consideration, in order to protect his rights at the court session, it is mandatory to give a written opinion by the prosecutor. This opinion is also required for the court to protect the interests of the State, in case the damage to the convicts has been inflicted on the State.

The non-appearance of the civil plaintiff or his representative does not stop the consideration of the case. However, the court may deem it necessary for them to participate in the court session.

6. The procedure of the court session at the stage of execution of court decisions does not generally differ from the procedure for consideration of the case on the merits in the first instance. However, there are peculiarities. The court session includes: the preparatory part; the presentation of the substance of the presentation by a representative of the body responsible for the execution of punishments or petitions of the convicted person and their justification; the answers of the speakers to the questions of the chairman and those present; giving explanations to the persons invited to the trial; hearing the opinion of the defender, the prosecutor; removal of the court to the conference room; the announcement of the court order. The sequence of listening to explanations is established by the court. Any simplification of the criminal process is unacceptable when considering issues of parole and the replacement of the unserved part of the sentence with a more lenient punishment, the use of pre-prepared forms outlining the text of decisions, the consideration of a large number of materials in one court session, etc.

7. A protocol shall be kept at the court session, which shall reflect all the actions of the court and the participants in the process, the explanations of the convicted person, whose participation is possible for health reasons, the representative of the medical commission that issued the conclusion, the representative of the body that sent the submission, the opinions of the defender and the prosecutor. The minutes of the court session should reflect the course of the court session, indicate all the actions of the court and the participants in the process, set out in detail the explanations of the persons regarding the petition, the opinions of the prosecutor and the defender, the victim or his representative.

The court's decision is made in the form of a ruling, which must be motivated and contain detailed justification for the conclusions reached by the court as a result of consideration of the petition.

The decision on the issue of releasing a person from serving a sentence due to illness must be motivated and contain detailed justification for the court's conclusions, which it came to as a result of consideration of the administration's submission or the convicted person's petition.

The decision on release from further serving of the sentence should provide evidence that the person suffers from a mental disorder or other serious illness that occurred during the period of serving the sentence and prevents its further serving, and when replacing the unserved part of the sentence with a milder type of punishment, the reasons why the court considered it inappropriate to completely release the convicted person from further serving should be given. punishments.

A copy of the decision based on the results of consideration of the administration's submission or the convicted person's petition must be sent for inclusion in the case to the court that issued the sentence, to the authorities responsible for the execution of the sentence, and in relation to the minor, also to the commission for juvenile affairs at his permanent place of residence.

Commentary to the Criminal Procedure Code of the Republic of Kazakhstan from the Supreme Court of the Republic of Kazakhstan

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