Commentary to article 73. Release from punishment due to illness of the Criminal Code of the Republic of Kazakhstan of the Criminal Code of the Republic of Kazakhstan
1. A person who, after committing a crime, has a mental disorder that makes it impossible for him to realize the actual nature and social danger of his actions (inaction) or to direct them, shall be released from punishment by the court, and the person serving the sentence shall be released by the court from further serving it. The court may order compulsory medical measures provided for by this Code for such persons.
2. A person suffering from another serious illness that prevents him from serving his sentence may be released from serving his sentence by a court or this punishment may be replaced by a milder type of punishment. This takes into account the severity of the crime committed, the identity of the convicted person, the nature of the disease and other circumstances.
3. The persons specified in parts one and two of this Article, in the event of their recovery, may be subject to criminal liability and punishment, if the limitation periods provided for in Articles 69 and 75 of this Code have not expired. 4. Military personnel sentenced to arrest or detention in a disciplinary military unit are exempt from punishment or its further serving in case of illness that makes them unfit for military service. The unserved part of the punishment may also be replaced by a more lenient type of punishment.
The grounds for the release of a person from further punishment due to illness are:
1) when, after committing a crime, a person has a mental disorder that makes it impossible for him to realize the actual nature and social danger of his actions (inaction) or to direct them (Part 1 of art. 73 of the Criminal Code), as a result of which further execution of the punishment becomes impossible;
2) the person has another serious illness that prevents him from serving his sentence (Part 2 of Article 73 of the Criminal Code).
According to paragraph 2 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan "On release from further punishment due to illness" dated April 11, 2002, a person is subject to release from serving a sentence due to the onset of a mental disorder, regardless of the severity of the crime committed, the duration of the sentence, the amount of the unserved part of the punishment, the degree of correction of the convicted person and other circumstances. The release of such a person from punishment is mandatory and the court should not be involved in the discussion of these issues. A person released from serving a sentence due to a mental disorder on the basis of paragraph "b" of Part 1 of Article 88 of the Criminal Code may simultaneously be assigned compulsory medical measures provided for in Article 90 of the Criminal Code.
At the same time, compulsory medical measures are prescribed only in cases where painful mental disorders are associated with the danger of other significant harm being inflicted by these persons or with danger to themselves or others.
The type of compulsory measures is chosen by the court on the basis of the opinion of psychiatrists, taking into account the nature and depth of the mental disorder, the degree of public danger of a person who has a mental disorder while serving his sentence, the possibility of causing him other significant harm, and the need for treatment.
According to Part 2 of Article 73 of the Criminal Code, a person suffering from another serious illness may be released from serving his sentence only if the disease identified by the medical commission is included in the List of Diseases approved by the Minister of Health of the Republic of Kazakhstan "Rules for the organization and conduct of forensic medical examination" (Order No. 875/1 of December 20, 2004). punishment or this punishment may be replaced by a more lenient type of punishment.
In accordance with Part 3 of Articles 73 and 94 of the Criminal Code, if a person suffering from a mental disorder or other serious illness recovers after the circumstances preventing him from serving his sentence have disappeared, the execution of the sentence against him may be resumed if the limitation periods for the execution of the conviction provided for in Articles 75 and 85 of the Criminal Code have not expired.
The time during which compulsory medical measures were applied to a person is counted in the term of punishment at the rate of one day of stay in a psychiatric hospital for one day of imprisonment.
If a person released from further punishment due to illness commits a new crime before recovery, he is liable only for the new crime, the unserved part of the punishment under the previous sentence is not added to the punishment imposed under the last sentence. The rules of Article 60 of the Criminal Code do not apply in this case.
If a person has committed a new crime after recovery and the circumstances preventing the serving of the sentence have disappeared, then, in accordance with Part 1 of Article 60 of the Criminal Code, the unserved part of the punishment under the previous sentence is fully or partially attached to the punishment imposed for the new crime, if there is a court order to resume the execution of the punishment under the previous sentence.
If a person commits a new crime while serving a more lenient type of punishment, which replaced the previous punishment, the punishment is imposed according to the rules of art. 60 of the Criminal Code.
In accordance with Part 4 of Article 73 of the Criminal Code of the Republic of Kazakhstan, military personnel serving sentences in the form of arrest or detention in a disciplinary military unit are exempt from further serving their sentences in case of illness that makes them unfit for military service.
The impossibility of executing a sentence should be determined by the nature of the disease, which is so serious that the convicted person is considered completely unfit for military service.
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 (in accordance with the types specified in art.39 of the Criminal Code) and the court finds it impossible to completely release the convicted person (including the serviceman) from further serving the sentence. In this case, it is necessary to take into account the severity of the crime committed, the length of the sentence served, the state of health of the convicted person, the data characterizing his personality, the degree of his correction and the extent to which illness prevents serving a suspended sentence or its reduction is not allowed.
Release from punishment due to illness is carried out on the basis of a submission from the body or institution executing the punishment or the petition of the convicted person and the conclusion of a special medical commission.
The court should carefully check the validity of the medical opinion and the results of inpatient treatment in order to exclude the release from punishment of a person who is not subject to release from further punishment.
The medical report should reflect the mental state of the person while serving a criminal sentence under a court verdict, as well as the nature and depth of the mental disorder, information about whether the person poses a danger to himself and others, whether he is capable of causing other significant harm, and whether he needs to be subjected to forced labor. medical measures and what kind; whether, taking into account the nature and severity of the disease, a person can exercise his rights provided for in parts 4 and 5 of Article 455 of the CPC.
In relation to a person suffering from another serious illness, the medical report should indicate the nature of the disease, the treatment performed, the evidence that inpatient treatment has not yielded positive results, that the disease has irreversible consequences, is progressing, as a result of which it prevents further serving of the sentence, and in relation to the serviceman it should be indicated that in connection with He was declared unfit for military service due to the disease.
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.
Control over the behavior of a person released from further punishment due to a mental disorder or other serious illness is carried out by the bodies responsible for the execution 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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