Commentary to article 481. Consideration of petitions for release from punishment due to illness of the Criminal Procedure Code of the Republic of Kazakhstan

The issue of release from serving a sentence due to illness is considered at the request of the convicted person (his legal representative or representative) or the institution or body executing the sentence.

The institution or body executing the sentence is obliged to provide the court with materials relevant to making a lawful decision, including confirming the length of the sentence served by the convicted person, detailed data characterizing the behavior of the convicted person while serving the sentence, including information about his treatment for alcoholism and drug addiction and its results, the conclusion of a medical examination. the commission on the presence of a convicted mental disorder or other serious illness that prevents serving the sentence, about the need for appropriate treatment and the impossibility of its implementation in institutions of the penal system.

The institution or body executing the punishment shall provide the court with information on the convicted person's intended place of residence after his release due to illness, and if the nature of the disease requires mandatory treatment in cases provided for by law, the name of the institution to which the convicted person will be sent or placed.

When considering the issue of release from punishment due to illness, the participation in the court session of a defender, a legal representative, a prosecutor, a representative of the institution or body executing the punishment, a representative of the medical commission that issued the conclusion is mandatory. If necessary, an expert who conducted the examination by court order and gave an opinion shall participate in the court session.

The court examines the compliance of the medical report with the list of diseases established by the authorized body, which are grounds for exemption from serving a sentence.

The convicted person participates in the court session if the nature of his illness does not prevent this.

After the preparatory part of the court session has been held, the convicted person (if he participates) or the institution or body executing the punishment, respectively, shall present the petition. Then the court examines the received materials and listens to the explanations of the persons who appeared at the court session. If necessary, to clarify the diagnosis and severity of the disease, as well as to resolve other issues requiring special knowledge, the court has the right to order forensic medical or forensic psychiatric examinations, including repeated ones.

Based on the results of the consideration of the petition, the court issues a resolution.:

1) on the satisfaction of the petition and the release of the convicted person from further serving his sentence due to illness with or without the use of compulsory medical measures;

2) the refusal to satisfy the petition, if a mental disorder or other serious illness does not prevent the execution of the sentence.

When deciding on the application of compulsory medical measures after the release of a convicted person from serving his sentence due to the presence of a mental disorder, the court resolves the following issues:

1) do the convicted person's painful mental disorders pose a danger to himself or others, or an opportunity to cause other harm;

2) whether and which compulsory medical measure is to be applied.

Recognizing that the convicted person's mental disorder does not pose a danger to himself or others or an opportunity to cause other harm, the court does not prescribe the use of compulsory medical measures.

The court's decision should indicate that after the convict recovers, his sentence is resumed if the statute of limitations of the conviction has not expired. The time spent by the convicted person on compulsory medical treatment is counted towards the term of the sentence served.

1. The grounds for the release of a person from further punishment due to illness are: the occurrence of a mental disorder in a person during the period of serving a sentence, which makes it impossible for him to realize the actual nature and social danger of his actions (inaction) or to direct them, as a result of which it becomes impossible to continue the execution of punishment; the presence of another serious illness that prevents him from serving punishments.

The presence of a serious illness in the convict and the impossibility of further serving the sentence in this regard is established by the conclusion of a special medical commission, which is issued after thorough medical examinations of the patient, indicating the failure of the treatment.

The issue of releasing a person from further serving a sentence due to illness is considered by the court on the recommendation of the head of the body or institution executing the sentence, or at the request of the convicted person.

The submission of the administration of the institution or body executing the punishment must contain information about the convicted person, the nature of the disease he suffers from, and in relation to a person suffering from another serious illness, information about the severity of the crime he committed, his personality, and behavior during the period of serving the sentence.

The relevant documents must be attached to the administration's submission (petition of the convicted person) for the release of the person from further serving the sentence, on the basis of which the court must make a decision: a medical report, an extract from a copy of the sentence, an extract from the List of diseases, as well as documents indicating the actual time served, the behavior of the convicted person while serving the sentence, and other characterizing data.

Simultaneously with the submission of the administration (petition of the convicted person), the personal file of the convicted person is sent to the court, the materials of which are subject to examination at the court session.

The issue of releasing a person from further serving his sentence due to illness is resolved by the district and equivalent court at the place where the convicted person is serving his sentence.

3. The release from further punishment of a person who has contracted another serious illness is not an obligation, but a right of the court. The court has the right to release a person from serving a sentence or to replace an unserved sentence with a milder type of punishment or to refuse to do so. Such a replacement is possible if the nature of the disease does not prevent the convicted person from serving a more lenient type of punishment (and the court finds it impossible to completely release the convicted person (including the serviceman) from further serving the sentence.

If it appears from the presentation of the administration and the medical opinion that compulsory medical measures should be applied to a person who has a mental disorder while serving his sentence, then the issue of releasing him from serving his sentence due to illness is considered simultaneously with the issue of applying compulsory medical measures.

4. 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.       5. A 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 reached 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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