Commentary to article 62. Calculation of terms of punishments and offset of punishment of the Criminal Code of the Republic of Kazakhstan of the Criminal Code of the Republic of Kazakhstan
1. The terms of deprivation of the right to hold certain positions or engage in certain activities, correctional labor, restrictions on military service, restrictions on freedom, arrest, detention in a disciplinary military unit, and imprisonment shall be calculated in months and years, and community service - in hours.
2. In case of substitution of punishment or addition of punishments specified in the first part of this Article, as well as in case of offset of punishment, the time limits may be calculated in days.
3. The time spent in custody before the sentence enters into legal force shall be counted towards the term of punishment in the form of imprisonment, arrest, and detention in a disciplinary military unit at the rate of one day per day, in the form of restriction of liberty - one day per two days, correctional labor and restrictions on military service - one day per three days., and for the term of punishment in the form of community service - at the rate of one day of detention for four hours of community service.
3-1. The time of detention under house arrest before the court verdict comes into force and the time of serving the imprisonment imposed by the court verdict for a crime committed outside the Republic of Kazakhstan, in the case of extradition of a person on the basis of Article 8 of this Code, shall be calculated at the rate of one day for one day of detention under house arrest for two hours of community service.
4. The time of a person's detention before the court verdict enters into force and the time of serving the deprivation of liberty imposed by the court verdict for a crime committed outside the Republic of Kazakhstan, in the case of extradition of a person on the basis of Article 8 of this Code, shall be calculated at the rate of one day per day.
5. When imposing a fine or deprivation of the right to hold certain positions or engage in certain activities on a convicted person who is in custody pending trial, the court, taking into account the period of detention, shall mitigate the imposed punishment or completely release him from serving this punishment.
6. The time during which compulsory medical measures were applied to a person who became ill with a mental illness after committing a crime shall be counted towards the term of punishment.
When calculating the terms of the imposed punishments, it is necessary to determine the time criterion. Depending on the type of punishment imposed, the legislator requires the use of time units such as hour, month, and year. Thus, in months and years, the terms of punishments are calculated at the time of appointment.:
- deprivation of the right to hold certain positions or engage in certain activities;
- correctional labor;
- restrictions on military service;
- restrictions on freedom;
- arrest;
- detention in a disciplinary military unit;
- imprisonment.
When imposing a punishment such as community service, the time limit is calculated only in hours.
At the same time, the legislator allows the use of such a unit of time as a day. The calculation of sentences in days is possible only under certain circumstances, which include:
- replacement of punishments specified in Part 1 of Article 62 of the Criminal Code of the Republic of Kazakhstan;
- addition of punishments specified in the same place;
- the time spent in custody is calculated on the basis of Part 3 of Article 62 of the Criminal Code of the Republic of Kazakhstan.
Part 3 of the commented article defines the provisions according to which the time of detention of a person before the entry into force of the sentence is counted in the term of serving the sentence. These provisions vary depending on the type of punishment imposed.
Thus, when a person is sentenced to imprisonment, arrest, or detention in a disciplinary military unit, the period of detention is calculated at the rate of one day per day.
When a person is sentenced to restriction of liberty, the period of detention is calculated at the rate of one day for two days. When a person is sentenced to correctional labor or service restrictions, the period of detention is calculated at the rate of one day per three days.
The term of punishment in the form of community service is calculated at the rate of one day of detention for four hours of community service.
When deciding on the extradition of foreigners and stateless persons who have committed crimes outside the Republic of Kazakhstan and are in the territory of Kazakhstan, it is necessary to determine the time spent under house arrest, in custody and the time spent in prison. The basis for resolving this issue between the CIS countries is the Chisinau Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters, adopted on October 7, 2002. This issue is resolved with other countries on the basis of bilateral and multilateral international treaties and agreements.
In such cases, the time of detention under house arrest before the court verdict comes into force and the time of serving the imprisonment imposed by the court verdict for a crime committed outside the Republic of Kazakhstan, in the case of extradition of a person based on Article 8 of this Code, are calculated at the rate of one day for one day of detention under house arrest for two hours of community service..
The time of a person's detention before the court verdict comes into force and the time of serving the imprisonment imposed by the court verdict for a crime committed outside the Republic of Kazakhstan, in the case of extradition of a person, are counted at the rate of one day per day.
Sometimes circumstances arise in which the court may commute the sentence imposed or completely release from serving this sentence.
Such circumstances arise if a person is sentenced to a non-custodial sentence when he was held in custody before the trial, and the law does not provide for the substitution of penalties.
For the court to apply these circumstances, there are certain conditions for their application and are associated with the imposition of only certain types of punishments.
Thus, when a person who is being held in pre-trial detention is sentenced to a fine, deprivation of the right to hold certain positions or engage in certain activities, the court, taking into account the period of detention, mitigates the imposed punishment or completely releases him from serving this punishment.
If there is a question about crediting compulsory medical measures to the term of punishment, it is necessary to be guided by the requirement that the time during which compulsory medical measures were applied to the person is counted towards the term of punishment.
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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