Commentary to article 48. Deprivation of liberty The Criminal Code of the Republic of Kazakhstan of the Criminal Code of the Republic of Kazakhstan
1. Deprivation of liberty consists in isolating a convicted person from society by sending him to a penal colony or placing him in a correctional colony of general, strict, special regime or in prison.
2. Persons sentenced to imprisonment, who at the time of sentencing were under eighteen years of age, are placed in educational colonies of general or enhanced regime.
3. Imprisonment for the commission of crimes provided for in this Code shall be established for a term of six months to fifteen years, and for especially grave crimes specified in the first part of Article 49 of this Code - up to twenty years or for life. For reckless crimes, the term of imprisonment may not exceed ten years. If community service, correctional labor, or restriction of liberty is replaced by deprivation of liberty, it may be imposed for a period of less than six months. In the case of partial or complete addition of the terms of imprisonment when imposing punishments for a combination of crimes and in the cases provided for in part three of Article 49, part five of Article 69 and part four of Article 75 of this Code, the maximum term of imprisonment may not exceed twenty-five years, and for a combination of sentences - more than thirty years.
4. Life imprisonment is established only as an alternative to the death penalty for the commission of particularly serious crimes encroaching on life, and may be imposed in cases where the court deems it possible not to apply the death penalty. Life imprisonment is not imposed on women, as well as on persons who have committed crimes under the age of eighteen, and on men who have reached the age of sixty-five at the time of sentencing.
5. The term of imprisonment is prescribed:
a) persons sentenced to imprisonment in penal colonies for negligent crimes; b) persons sentenced to imprisonment for the first time for committing intentional crimes of minor or moderate gravity and serious crimes, and persons who are involved in community service, correctional or restriction of liberty to be replaced by imprisonment for a term of up to six months,
- in correctional colonies of general regime;
c) persons who have been sentenced to imprisonment for the first time for committing particularly serious crimes, as well as in cases of recidivism if the convicted person has previously served a prison sentence, and women in cases of particularly dangerous recidivism
- in correctional colonies of strict regime;
d) in case of a particularly dangerous recidivism of crimes, as well as persons sentenced to life imprisonment,
- in correctional colonies of special regime.
6. Persons sentenced to imprisonment for a term of more than five years for committing particularly serious crimes, as well as for a particularly dangerous recidivism of crimes, may be assigned to serve part of the sentence, but not more than five years, in prison.
7. The type of correctional institution appointed by the verdict is changed by the court in accordance with the penal enforcement legislation of the Republic of Kazakhstan.
One of the most severe punishments after the death penalty is imprisonment.
This is due to the amount of legal restrictions imposed by a person sentenced to imprisonment, as established by law and regulations.
In accordance with Part 1 of Article 48 of the Criminal Code of the Republic of Kazakhstan, deprivation of liberty consists in isolating a convicted person from society by sending him to a penal colony or placing him in a correctional colony of general, strict, special regime or in prison.
In the normative resolution No. 15 of the Supreme Court of the Republic of Kazakhstan "On certain issues of sentencing to imprisonment" dated October 19, 2001, it was noted that the punishment of imprisonment, as a more severe type of punishment from among the types of punishment provided for by law, is imposed only in cases where the correction of convicts and the prevention of new crimes is impossible. when imposing less severe types of punishment.
When imposing a custodial sentence, the issues of its duration should be resolved from the point of view of its sufficiency to achieve the goals of punishment. The use of a preventive measure in the form of arrest should not be taken into account by the courts when imposing punishment and serve as a reason for the mandatory use of imprisonment.
If the criminal law under which a person is found guilty, along with imprisonment, provides for more lenient penalties, then the courts, when passing sentence, are required to discuss the issue of imposing a non-custodial sentence. The imposition of imprisonment in the presence of another less severe punishment should be motivated in the sentence.
The term of imprisonment depends on the form of guilt, the severity of the crime committed and other legal circumstances.
Imprisonment for crimes is established for a term of six months to fifteen years, and for especially serious crimes specified in part 1 of Article 49 - up to twenty years or for life. For reckless crimes, the term of punishment may not exceed ten years. If community service, correctional labor, or restriction of liberty is replaced by deprivation of liberty, it may be imposed for a period of less than six months. In the case of partial or complete addition of terms of imprisonment when assigned for a combination of crimes and in cases provided for in Part 3 of art. 49, Part 5 of art. 69 and Part 4 of Article 75 of the Criminal Code of the Republic of Kazakhstan, the maximum term of imprisonment may not exceed twenty-five years, and in total sentences - more than thirty years (part 3 of Article 48 of the Criminal Code of the Republic of Kazakhstan)
Deprivation of liberty may be applied to minors who have committed a crime (paragraph "e" of Part 1 of Article 79 of the Criminal Code of the Republic of Kazakhstan) Persons sentenced to imprisonment who have not reached the age of 18 at the time of sentencing are placed in general or enhanced regime educational colonies (Part 2 of Article 48 of the Criminal Code of the Republic of Kazakhstan).
The said regulatory resolution of the Supreme Court of the Republic of Kazakhstan clarifies that imprisonment, as the most severe type of criminal punishment, may be imposed on minors within the time limits established by art. 79 of the Criminal Code of the Republic of Kazakhstan. At the same time, the term of imprisonment for one crime, as well as for a combination of crimes and a combination of sentences, may not exceed 10 years. Imprisonment for more than the specified period of up to 12 years may be imposed on minors only for murder committed under aggravating circumstances. In this case, the term of imprisonment imposed for the totality of crimes and the totality of sentences may not be higher than the term imposed for murder committed under aggravating circumstances.
For the first time, the Criminal Code of the Republic of Kazakhstan provides for life imprisonment. It is established only as an alternative to the death penalty for particularly serious crimes that infringe on life, and may be imposed in cases where the court deems it possible not to apply the death penalty. Life imprisonment is not imposed on women, as well as on persons who have committed crimes under the age of eighteen, and on men who have reached the age of sixty-five at the time of sentencing (Part 4 of Article 48 of the Criminal Code of the Republic of Kazakhstan).
Part 5 of Article 48 of the Criminal Code of the Republic of Kazakhstan defines the circle of convicts and the list of types of correctional institutions where these persons should serve their imprisonment.
a) Penal colonies are intended for the detention of persons who have committed crimes through negligence and sentenced to imprisonment;
b) Persons who have been sentenced to imprisonment for the first time for intentional crimes of minor or moderate gravity and serious crimes, and persons whose involvement in community service, correctional labor or restriction of liberty has been commuted to imprisonment for up to six months, shall serve their sentences in correctional colonies of general regime.
c) Persons who have been sentenced to imprisonment for the first time for committing particularly serious crimes, as well as for recidivism of crimes if the convicted person has previously served imprisonment, and for women with a particularly dangerous recidivism of crimes - in high-security penal colonies;
d) In case of particularly dangerous recidivism of crimes, as well as by persons sentenced to life imprisonment, the sentence is served in correctional colonies of a special regime.
Persons sentenced to imprisonment for a term of more than five years for committing particularly serious crimes, as well as for a particularly dangerous recidivism of crimes, may be assigned to serve part of the sentence, but not more than five years, in prison (Part 6 of the Criminal Code of the Republic of Kazakhstan).
The type of correctional institution appointed by the verdict is changed by the court in accordance with the penal enforcement legislation of the Republic of Kazakhstan.
The procedure and conditions for serving and executing imprisonment in correctional institutions are regulated by Chapter 16 of the Criminal Code of the Republic of Kazakhstan.
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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