Commentary to article 72. Postponement of serving sentences for pregnant women and women with young children  The Criminal Code of the Republic of Kazakhstan of the Criminal Code of the Republic of Kazakhstan

     1. Convicted pregnant women and women with a child under the age of fourteen, except those sentenced to imprisonment for a term of more than five years for grave and especially grave crimes against the person, the court may defer serving the sentence for up to five years, respectively, but not more than until the child reaches the age of fourteen.      

2. If the convicted person referred to in paragraph one of this article has abandoned the child, or continues to evade the upbringing of the child, or violate public order after a two-time written warning issued by the body exercising control over the convicted person, in respect of whom the serving of the sentence has been postponed, the court may, on the recommendation of this body, cancel the postponement of serving the sentence. and send the convicted person to serve her sentence in a place designated in accordance with the court verdict.      

3. When the child reaches the age of fourteen, or in the event of his death, or in the event of termination of pregnancy, the court, depending on the behavior of the convicted person, may release her from serving her sentence or replace the imposed punishment with a more lenient type of punishment, or decide to send the convicted person to an appropriate institution to serve her sentence.      

4. If, during the period of postponement of serving her sentence, the convicted person commits a new crime, the court shall sentence her according to the rules provided for in Article 60 of this Code.      

A special type of release from punishment, a kind of conditional sentence and at the same time an independent form of individualization of criminal responsibility is the postponement of punishment for pregnant women and women with young children. This is an optional conditional release. Its application is the right, not the duty of the court.      

The reason for applying this type of exemption from punishment is the inexpediency of serving a sentence by a pregnant woman or a woman with young children, since pregnancy and the presence of young children complicate the process of executing punishment and achieving its goals.      

The law provides for two conditions necessary for granting a reprieve from serving a sentence.      

First, the fact of a woman's pregnancy or the presence of children under the age of fourteen must be established.       The second condition is that a woman should not be sentenced to a term of more than five years for grave and especially grave crimes against the person.      

Within the meaning of the law, a reprieve may be granted to a convicted person both during sentencing and during the period of serving her sentence.      

The importance of this type of exemption is to create favorable conditions for women to become pregnant, give birth, and raise young children.      

The law, providing for the possibility of applying a delay in serving a sentence on the grounds of Article 72 of the Criminal Code, specifies the legal consequences of committing a new crime by a pregnant woman or a woman with young children who has been granted such a delay by the court. This refers to the commission of a new crime, regardless of its categories provided for in Article 10 of the Criminal Code of the Republic of Kazakhstan, during the period of postponement of serving a sentence. According to Part 3 of Article 72 of the Criminal Code, the commission of such a crime is the basis for sentencing a convicted person according to the rules provided for in Article 60 of the Criminal Code.      

The fact of a woman's pregnancy is confirmed by a medical certificate of pregnancy, and the fact of having a child under the age of 14 is confirmed by a birth certificate and a certificate of the actual presence of a dependent child of the convicted woman. It doesn't matter when the pregnancy occurred, before the conviction, or while serving the sentence.      

The theoretical and social basis for granting deferral to this category of convicts is to achieve the goals of criminal responsibility by establishing control over their behavior, minimal restriction of personal freedom, mobilizing their own efforts to embark on the path of correction and putting into practice the principles of humanism, justice, expediency and economy of repression.      

Ensuring normal conditions for the life and upbringing of young children is the main goal of this type of release from punishment. To this end, the behavior of the convicted person, to whom a delay in serving her sentence has been applied, is monitored by an authorized body. If, during the period of postponement, the convicted person has abandoned the child or continues to evade the upbringing of the child, or violate public order after a two-time written warning issued by the body exercising control over the convicted person in respect of whom the sentence has been postponed, the court may, upon the provision of this body, cancel the postponement of the sentence and send the convicted person to serve her sentence in a place designated in accordance with the according to the verdict of the court. A convicted person is considered to be evading the upbringing of a child if, without officially abandoning the child, she left him in a maternity hospital or transferred him to an orphanage, or left the child to relatives or other persons, or disappeared.       

Postponement of serving a sentence is not a final release from serving a sentence imposed by a court verdict. In accordance with Part 3 of Article 72 of the Criminal Code of the Republic of Kazakhstan, upon reaching the age of fourteen, the court is obliged to consider the consequences of the expiration of the postponement period. Taking into account the behavior of the convicted person during the postponement and her attitude to the performance of maternal duties, the court has the right to make one of three decisions:      

1) finally release the convicted person from the unserved part of the punishment,      

2) replace it with a milder form of punishment,      

3) send the convicted person to serve the sentence in accordance with the verdict.      

The law does not specify when the court has the right to release a woman from punishment, and when to replace it with a milder type of punishment. The resolution of this issue is solely within the jurisdiction of the court.

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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