On amendments and additions to some regulatory rulings of the Supreme Court of the Republic of Kazakhstan on criminal and criminal procedure legislation
Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated September 28, 2023 No. 1
To make amendments and additions to the following regulatory rulings of the Supreme Court of the Republic of Kazakhstan:
"On release from further serving of a sentence, replacement of the unserved part of the sentence with a more lenient type of punishment due to illness" dated April 11, 2002 No. 7 (with amendments and additions made by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated April 21, 2011 No. 1, April 20, 2018 No. 8):
1) the title should be worded as follows:
"On release from punishment, replacement of the unserved part of the punishment with a milder type of punishment or postponement of serving the sentence due to illness";
2) the entire text has been amended in Kazakh, the text in Russian does not change;
3) in the preamble:
The words "further serving" should be deleted;
after the words "type of punishment", add the words "or postponement of serving the sentence";
4) in paragraph 1, the word "further" should be deleted;
5) in paragraph 3:
in the first paragraph:
replace the words "medical commission" with the words "special medical commission";
Replace the words "by Order of the Minister of Internal Affairs of the Republic of Kazakhstan dated August 19, 2014 No. 530 (hereinafter referred to as the List of Diseases)" with the words "by Order of the Minister of Health of the Republic of Kazakhstan dated June 30, 2022 No. KR DSM–58 (hereinafter referred to as the List of Diseases)";
in the second paragraph, replace the words "special medical commission" with the words "special medical commission";
6) in paragraph 5:
The first paragraph should be worded as follows:
"A person suffering from another serious illness that prevents him from serving his sentence, except for a person sentenced to life imprisonment, may be suspended by the court, or he is released from serving his sentence by the court, or the punishment may be replaced by a more lenient type of punishment.";
in the second paragraph, replace the words "Such substitution" with the words "Commutation of punishment";
add the following fourth paragraph:
"The postponement of serving a sentence is not applied to persons specified in the fourth part of Article 75 of the Criminal Code.";
7) in paragraph 6:
The first paragraph should be worded as follows:
"In accordance with parts five and six of Article 162 of the Criminal Executive Code of the Republic of Kazakhstan (hereinafter referred to as the PEC) and part three of Article 478 of the Criminal Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC), the issue of release from punishment or postponement of serving a sentence due to illness is considered by the court on the recommendation of the institution or body executing the punishment, or at the request of the convicted person (his legal representative) or his defense lawyer, who presented a lawyer's certificate and a written notice of protection (representation).";
in the third paragraph, replace the words "medical report" with the words "conclusion of a special medical commission";
8) in paragraph 6-1:
In the first paragraph, the words "medical advisory commission of a medical and preventive institution" should be replaced by the words "council of a medical organization in an institution of the penitentiary system";
In the second paragraph, replace the words "Rules of medical examination of convicts submitted for release from serving their sentences due to illness, approved by Order of the Minister of Internal Affairs of the Republic of Kazakhstan dated August 19, 2014 No. 530" with the words "Rules of medical examination of convicts submitted for release from serving their sentences due to illness, approved by order of the Minister of Health Of the Republic of Kazakhstan dated June 30, 2022 No. KR DSM-58";
9) Paragraph 7 should be worded as follows:
"7. The establishment of a disability of the first or second group for a person serving a sentence of community service, correctional labor, or restriction of liberty, according to part seven of Article 162 of the Criminal Code, is the basis for submitting a submission to the court for his early release from serving his sentence.";
10) in paragraph 8, the word "further" should be deleted;
11) in paragraph 9, in the first paragraph, the word "further" should be deleted.;
12) paragraph 10 should be worded as follows:
"10. The issue of releasing a person from punishment, postponing serving a sentence, or replacing the unserved part of the sentence due to illness is resolved by the district and equivalent court at the place of execution of the sentence in accordance with the procedure provided for in articles 477, 478, and 481 of the CPC.";
13) in paragraph 12:
in the first sentence:
Replace the words "part six" with the words "parts six and seven";
after the words "on release from punishment", add the words ", postponement of serving the sentence";
replace the word "medical" with the word "medical";
14) in paragraph 14:
in the first paragraph, replace the words "release of a person from serving a sentence" with the words "release of a person from punishment, postponement of serving a sentence";
In the second paragraph, the words "on release from further punishment" should be deleted.;
add the following third paragraph:
"Court decisions on the release from punishment or postponement of serving the sentence of a convicted person, or the replacement of the unserved part of the sentence with a more lenient type of punishment due to illness are subject to immediate execution in terms of the release of the convicted person from custody.";
15) in paragraph 17, in the third paragraph, after the words "deprivation of liberty", add the words "or for one day of arrest";
16) in paragraph 18, in the first and second paragraphs, the word "further" should be deleted;
17) paragraph 19 should be worded as follows:
"19. A court decision on the issue of releasing a person from punishment, postponing the serving of a sentence, or replacing the unserved portion of the sentence with a more lenient type of punishment due to illness may be reviewed on appeal.";
"On Judicial Practice in cases of Embezzlement" dated July 11, 2003 No. 8 (as amended and supplemented by regulatory Rulings of the Supreme Court of the Republic of Kazakhstan dated December 19, 2003 No. 14; December 25, 2006 No. 12; May 11, 2007 No. 3; April 21, 2011 No. 1; dated June 29, 2017 No. 6, dated April 20, 2018 No. 8; dated December 11, 2020 No. 6, dated December 22, 2022 No. 10):
1) in paragraph 13:
add the following second sentence to the fourth paragraph:
"A sign of penetration also occurs in cases when the perpetrators of stolen items are removed from a room, storage or vehicle without using technical means and other devices (for example, by hand) through open windows, panes, doors (doors), etc.";
add the following eighth paragraph:
"In case of theft of a vehicle committed by entering its interior, the actions of the perpetrator are not subject to additional qualification on the basis of penetration into the vehicle.";
2) paragraph 15 should be supplemented with the following eighth paragraph:
"When stealing someone else's property, the size and value of the stolen property must be established. The size and value of the specific property that the perpetrator intended to steal should also be established in cases where the crime was not completed due to circumstances beyond his control. In the case of an attempt to steal someone else's property without a specific intent, that is, without determining the object of the theft, the actions of the perpetrator are subject to qualification based on proven signs of a crime (for example: attempted theft of someone else's property by a group of persons by prior agreement, with illegal entry into the vault, etc.), but cannot be qualified as theft on a large or especially large scale the size. If the perpetrator's intent to steal someone else's property is not proven at all, or if the person voluntarily refused to commit the planned theft, then his actions cannot be qualified as attempted theft. In such cases, this person is subject to criminal liability only for an act actually committed by him, which contains the elements of another criminal offense, for example, violation of the inviolability of the home (Article 149 of the Criminal Code), intentional destruction or damage to someone else's property (Article 202 of the Criminal Code), careless destruction or damage to someone else's property (Article 204 of the Criminal Code), etc.";
"On judicial practice of assigning types of institutions of the penal enforcement system to persons sentenced to imprisonment" dated June 23, 2006 No. 7 (with amendments and additions made by regulatory Resolutions of the Supreme Court of the Republic of Kazakhstan dated April 21, 2011 No. 1; April 20, 2018 No. 8; December 11, 2020 No. 6, dated December 22, 2022, No. 10):
1) Paragraph 3 should be worded as follows:
"3. Persons (men and women) serving sentences of imprisonment in institutions of the medium-security penal system are assigned:
persons sentenced to imprisonment for a term of more than two years for committing intentional crimes (moderate, grave and especially grave) who have not previously served a custodial sentence;
persons sentenced to imprisonment, including for a term of less than two years, for committing crimes provided for in parts 1-1, two and three of Article 366 of the Criminal Code, parts two and three of Article 367 of the Criminal Code, part two of Article 368 of the Criminal Code, who had not previously served a sentence of imprisonment;
persons who have not previously served a custodial sentence, who have been fined, subjected to correctional labor, community service, and restriction of liberty replaced with imprisonment.";
2) Paragraph 4 should be worded as follows:
"4. Serving a sentence of imprisonment in institutions of the maximum security penal system is assigned to persons (men and women):
persons sentenced to imprisonment who previously served a prison sentence for committing an intentional crime;
persons sentenced to imprisonment for committing crimes provided for in parts 1-1, two and three of Article 366 of the Criminal Code, parts two and three of Article 367 of the Criminal Code, part two of Article 368 of the Criminal Code, who previously served imprisonment for committing an intentional crime or a crime of negligence;
persons who have previously served a prison sentence for committing an intentional crime or a negligent crime, who have been fined, subjected to correctional labor, community service, or restriction of liberty replaced with imprisonment.";
3) add paragraphs 4-1, 4-2, 4-3 and 4-4 as follows:
"4-1. Taking into account the provisions of the third part of Article 19 of the CPC, persons (men and women) who previously served imprisonment for negligent crimes are assigned to serve their imprisonment.:
convicted persons specified in paragraph 1) of the fifth part of Article 46 of the Criminal Code in institutions of the minimum security penal system;
sentenced to imprisonment for a term of more than two years for committing intentional crimes in institutions of the medium-security penal system;
persons sentenced to imprisonment for committing crimes provided for in parts 1-1, two and three of Article 366 of the Criminal Code, parts two and three of Article 367 of the Criminal Code, part two of Article 368 of the Criminal Code, and persons who have been fined, subjected to correctional labor, community service, or restriction of liberty replaced with imprisonment, in institutions of the penitentiary system of maximum security.
4-2. When applying the provisions of Article 46 of the Criminal Code as amended by the Law of the Republic of Kazakhstan dated March 17, 2023 No. 212-VII "On Amendments and Additions to Certain Legislative Acts of the Republic of Kazakhstan on human rights in the field of criminal proceedings, the execution of punishment, as well as the prevention of torture and other cruel, inhuman or degrading treatment" (Next - the new criminal law) should be based on the fact that the new criminal law will enter into force sixty calendar days after the date of its official publication (Kazakhstanskaya Pravda newspaper dated March 20, 2023, No. 53), that is, from May 20, 2023.
In this regard, it is necessary to proceed from the fact that when issuing a judicial act before May 20, 2023, the provisions of Article 46 of the Criminal Code as amended by the Law apply until March 17, 2023, and from May 20, 2023, the new criminal law. Judicial acts that entered into force before May 20, 2023, are subject to review on the basis of the first part of Article 6 of the Criminal Code in the order of execution of the sentence.
At the same time, it should be borne in mind that, in accordance with the new version of Article 79 of the Criminal Code, the cancellation or removal of a person's criminal record does not nullify the very fact that he is serving a prison sentence, which must be taken into account by the court when determining the type of institution of the penal system for a newly committed crime. In this regard, persons who have previously served a prison sentence, whose convictions have been expunged or withdrawn in accordance with the procedure established by law, should be assigned the type of institution of the penal correction system, taking into account the provisions of paragraph 3) of part five and part six of Article 46 of the Criminal Code as persons who previously served a prison sentence. It should also be noted that in these cases, the new criminal law, in accordance with the requirements of the third part of Article 6 of the Criminal Code, applies only to persons who committed a crime after May 19, 2023.
4-3. When applying the new criminal law in accordance with Article 6 of the Criminal Code, it is necessary to comply with the clarifications of paragraph 9 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated December 22, 2016 No. 15 "On judicial practice on the application of Article 6 of the Criminal Code of the Republic of Kazakhstan" that when applying the rules on retroactive force of the criminal law is not allowed for the same The question is the selective application of norms that improve the situation of a person brought to criminal responsibility, both the new and the old criminal law.
4-4. Persons sentenced to imprisonment for a term of more than five years for committing particularly serious crimes, with a dangerous recidivism of crimes, who have previously served imprisonment, who may be assigned to serve part of the sentence, but not more than five years in institutions of the penal enforcement system of complete security, are understood to be persons who have collectively all the three mentioned grounds.";
4) in paragraph 6, the words "if this criminal record has not been removed and extinguished in accordance with the procedure established by law at the time of the commission of a new crime" should be deleted;
5) Paragraph 6-1 should be worded as follows:
"6-1. With regard to paragraph 3) of the fifth part of Article 46 of the Criminal Code, persons who have previously served imprisonment are understood to mean persons who have served sentences in institutions of the penal correction system in the past for committing a crime, regardless of the expiration date of their criminal record and the expiration of the statute of limitations for bringing to justice for a crime committed in the past.
This rule also applies to persons sentenced to imprisonment for committing a crime under the age of a minor.
Persons who have been sentenced to probation with the application of article 63 of the Criminal Code are not considered to be persons who have previously served their sentences. Therefore, such a criminal record is not taken into account when determining the type of institutions of the penal system according to the rules provided for in paragraph 3) of the fifth part of Article 46 of the Criminal Code.
To resolve the issue of recognizing the type of recidivism in the actions of a person previously sentenced to imprisonment, paragraph 12 of the normative resolution of the Supreme Court of the Republic of Kazakhstan dated June 25, 2015 No. 4 "On certain issues of criminal punishment" should be guided.;
6) in paragraph 8, in the sixth paragraph, replace the words "release from punishment due to illness (Article 75 of the Criminal Code)" with the words "release from punishment or postponement of punishment due to illness (Article 75 of the Criminal Code)";
7) in paragraph 9, the words "to imprisonment for committing a crime with a dangerous recidivism of crimes, as well as convicted persons" should be deleted;
8) in paragraph 10:
the words "and also" should be deleted;
after the words "with a dangerous recidivism of crimes", add the words "who have previously served a prison sentence, except for persons sentenced to life imprisonment,";
9) in paragraph 11:
In the first paragraph, the words "and may not be the basis for the appointment of an institution of the maximum and extreme security penal system" should be deleted.;
In the second paragraph, the words "for committing an intentional crime" should be deleted.;
"On the application of the norms of criminal and criminal procedure legislation on the observance of personal freedom and inviolability of human dignity, countering torture, violence, and Other cruel or degrading treatment and punishment" dated December 28, 2009 No. 7 (with amendments and additions made by regulatory decisions of the Supreme Court of the Republic of Kazakhstan dated April 21, 2011 Year No. 1; dated March 31, 2017 No. 3; dated January 24, 2020 No. 2; dated December 11, 2020 No. 6; dated December 8, 2021 No. 3):
1) Paragraph 15 should be worded as follows:
"15. Cruel, inhuman or degrading treatment and torture must be distinguished from other acts involving abuse of power or official authority, responsibility for which is provided for in Article 362 of the Criminal Code. If the committed act is covered by the disposition of the relevant part of Article 146 of the Criminal Code, then, taking into account the requirements of the third part of Article 13 of the Criminal Code on competition of general and special norms, this act is qualified only by a special norm – the relevant part of Article 146 of the Criminal Code without additional qualification under Article 362 of the Criminal Code.
Any sane individual who has reached the age of sixteen belongs to another person specified in Article 146 of the Criminal Code.";
2) paragraph 15-1 should be worded as follows:
"15-1. The tacit consent of the subject referred to in Article 146 of the Criminal Code should be understood as the action (inaction) of this person, expressed in consent (approval) to the use by others of cruel, inhuman or degrading treatment or torture, including by tacit permission when present during the commission of such actions, as well as inaction when aware of illegal actions of other persons, or the unlawful admission of other persons to the person against whom cruel, inhuman or degrading treatment or torture was subsequently inflicted.";
3) delete paragraph 15-2;
4) in paragraph 16:
in the first paragraph:
replace the words "by an investigator, an inquirer, another official or another person" with the words "by an official or a person acting in an official capacity, or by another person at their instigation or with their knowledge or acquiescence";
Replace the words "part one" with the words "part two";
In the third paragraph, replace the words "article 102" with the words "article 105";
5) delete paragraph 16-1;
6) in paragraph 17, replace the words "part one of the article" with the word "article";
"On certain issues of criminal punishment" dated June 25, 2015 No. 4 (as amended and supplemented by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated December 22, 2017 No. 13; December 11, 2020 No. 6; December 8, 2021 No. 3; December 22, 2022 No. 10):
1) in paragraph 4:
in the second paragraph, replace the words "other intoxicants" with the word "toxic";
The sixth paragraph should be worded as follows:
"The presence of minor children cannot be recognized in accordance with paragraph 4) the first part of Article 53 of the Criminal Code is a circumstance mitigating the criminal liability and punishment of the guilty person if the act committed by him was directed against his own young children or their other parent (mother or father), or if the young children are not dependent on the defendant (defendant) or if he (she) is deprived of parental rights.";
2) paragraph 14 should be supplemented with paragraphs five and six as follows:
"When imposing a punishment by absorbing a less severe punishment with a more severe one, in cases where additional punishment is imposed only for a less serious criminal offense, the additional punishment is subject to addition to the final basic punishment imposed on the totality of criminal offenses.
In cases where changes have been made to the article of the Special Part of the Criminal Code in the direction of tightening its sanctions, then if several offenses committed by a person before and after such changes are qualified under this article, the punishment for the perpetrator is assigned according to one article in a new version without applying the rule of Article 58 of the Criminal Code.";
3) in paragraph 16, the fifth paragraph should be worded as follows:
"if convicted to restriction of liberty or community service, unserved punishment as of the day of the commission of a new criminal offense.";
"On some issues of the application by courts of the norms of criminal procedure legislation in an incoming criminal case" dated December 8, 2017 No. 10 (with amendments and additions made by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated December 22, 2022 No. 10):
1) in paragraph 21, in the first paragraph, add the words "in compliance with the requirements of part three of Article 31 of the CPC" to the first sentence;
2) in paragraph 24, the words "the charge stated in the indictment does not correspond to the charge stated in the decision on the qualification of the suspect's act;" should be deleted.
According to article 4 of the Constitution of the Republic of Kazakhstan, this regulatory resolution is included in the current law, is generally binding and enters into force from the date of the first official publication.
Chairman of the Supreme Court
Republic of Kazakhstan
A. Mergaliev
Judge of the Supreme Court
Republic of Kazakhstan,
Secretary of the plenary session
G. Almagambetova
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