On judicial practice of assigning types of institutions of the penal system to persons sentenced to imprisonment

Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated June 23, 2006 No. 7.

      The footnote. The title is amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication).

     In connection with the amendment of the criminal legislation of the Republic of Kazakhstan regulating the appointment of types of institutions of the penal system, and in order to ensure the correct and uniform application of the law, the plenary session of the Supreme Court of the Republic of Kazakhstan

     Decides:

     The footnote. The preamble as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication).

The correct definition of the type of institution of the penal system is important for achieving the goals of punishment and ensures individualization of the execution of punishment, taking into account the severity of the crime, the identity of the offender, his age and gender. Courts should strictly follow the provisions of articles 46, 81 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code), which determine the procedure for appointing the type of institution of the penal system in which a person sentenced to imprisonment should serve his sentence.

     At the same time, it should be borne in mind that the law excludes the possibility of appointing one or another type of institution of the penal system at the discretion of the court.

     The footnote. Paragraph 1 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication).

Persons (men and women) who have been convicted are sent to institutions of the minimum security penal system.:

      for crimes committed by negligence, regardless of the term of punishment;

     for crimes not related to the use of violence provided for in Chapters 7,8,9,12 and 13 of the Criminal Code;

      for crimes provided for in Chapter 15 of the Criminal Code, in case of full compensation for the damage caused by the crime, with the exception of crimes provided for in parts 1-1, two, three and four of Article 366, parts two, three and four of Article 367, part two of Article 368 of the Criminal Code;

     those convicted for the first time of committing an intentional crime, for which a sentence of imprisonment of up to two years is imposed, with the exception of crimes provided for in parts 1-1, two, three and four of Article 366, parts two, three and four of Article 367, part two of Article 368 of the Criminal Code.

     By virtue of the requirements of the third part of Article 19 of the CPC, persons who have previously been convicted but have not served a prison sentence and who have been convicted of committing a new intentional crime for which a sentence of up to two years has been imposed, are assigned to serve their sentences in institutions of the minimum security penal system.

     The footnote. Paragraph 2 - as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 11.12.2020 No. 6 (effective from the date of the first official publication); as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 22.12.2022 No. 10 (effective from the date of the first official publication).

Women are assigned to serve their sentences of imprisonment in institutions of the medium-security penal system.:

     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 sentence of imprisonment for committing an intentional crime, with the exception of the cases provided for in paragraphs 1) and 3) of the fifth part of Article 46 of the Criminal Code;

     in case of recidivism, if she has not previously served a real 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, parts two and three of Article 367, part two of Article 368 of the Criminal Code;

      in cases where a fine, correctional labor, community service, or restriction of liberty have been replaced by imprisonment.;

     For women, serving a custodial sentence in institutions of the maximum security penal system is assigned to: persons sentenced to imprisonment who previously served a custodial sentence for committing an intentional crime, with the exception of women sentenced to imprisonment for crimes not related to the use of violence provided for in Chapters 7, 8, 9, 12. and 13 of the Criminal Code, as well as those convicted of crimes under Chapter 15 of the Criminal Code, in case of full compensation for the damage caused by the crime.;

     persons sentenced to imprisonment for crimes against the sexual integrity of minors, with the exception of persons who have committed a crime under the age of a minor;

     with a dangerous relapse of crimes, regardless of whether she has previously served a prison sentence for committing a crime.

     The footnote. Paragraph 3 - as amended by the normative resolution of the Supreme Court of the Republic of Kazakhstan dated 12/22/2022 No. 10 (effective from the date of the first official publication); as amended by the normative resolution of the Supreme Court of the Republic of Kazakhstan dated 12/22/2022 No. 10 (effective from the date of the first official publication).

Men are assigned to serve their sentences of imprisonment in institutions of the maximum security penal system.:

     for the first time sentenced to imprisonment for committing particularly serious crimes, who had not previously served their sentences in places of deprivation of liberty;

     in case of recidivism, regardless of whether he previously served a prison sentence for committing a crime.;

     persons sentenced to imprisonment who have previously served imprisonment for committing an intentional crime, with the exception of men sentenced to imprisonment for non-violent crimes provided for in Chapters 7,8,9,12 and 13 of the Criminal Code, as well as those convicted of crimes provided for in Chapter 15 of the Criminal Code, in case they fully compensate for the damage caused by the crime.

     persons sentenced to imprisonment for crimes against the sexual integrity of minors, with the exception of persons who have committed a crime under the age of a minor.

     The footnote. Paragraph 4 is amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 11.12.2020 No. 6 (effective from the date of the first official publication).

Persons sentenced to imprisonment for the first time include those who were previously sentenced to imprisonment, but whose convictions have been expunged or withdrawn in accordance with the procedure established by law, as well as persons who have outstanding or outstanding convictions for acts that are not recognized as a criminal offense by the new retroactive criminal law..

     The footnote. Paragraph 5 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication).

Persons who have previously served a custodial sentence are understood to mean persons who in the past, by a court verdict that entered into force, were sentenced to imprisonment and actually served this sentence in institutions of the penal enforcement system, unless this conviction was removed and extinguished in accordance with the procedure established by law at the time of the commission of a new one. crimes.

      Persons who have previously served a custodial sentence also include:

      persons conditionally sentenced to imprisonment (Articles 40 of the Criminal Code of the Kazakh SSR (hereinafter the Criminal Code of the Kazakh SSR), 63 of the Criminal Code), who, on the grounds provided for in parts seven, eight, nine of Article 40 of the Criminal Code of the Kazakh SSR, parts three, four, five of Article 64 of the Criminal Code, were sent to serve their sentences in institutions of the penal system;

      persons sentenced to suspended imprisonment (Articles 41-1 of the CC of the KSSR, 74 of the CC) who, on the grounds provided for in parts five, seven of Article 41-1 of the CC of the KSSR, parts two, three, four of Article 74 of the CC, were sent to serve their sentences in institutions of the penal system;

     persons conditionally sentenced to imprisonment with compulsory labor (Article 23-2 of the Criminal Code of the KSSR), who, on the grounds provided for in part five of Article 23-2 of the Criminal Code of the KSSR, were sent to serve their sentences in institutions of the penal system;

      persons sentenced to imprisonment and serving this sentence according to sentences handed down by courts of the former USSR and its constituent Union republics (based on convictions that took place before December 8, 1991);

     persons sentenced to imprisonment by a verdict of a court of another state, who, in connection with their subsequent transfer to serve their sentence, were held in institutions of the penitentiary system of the Republic of Kazakhstan in accordance with a court decision on the acceptance of a sentence of a foreign state for execution, in cases provided for by international treaties of the Republic of Kazakhstan.

     Persons who have been conditionally sentenced on the basis of Article 63 of the Criminal Code, as well as persons who have been suspended on the basis of article 74 of the Criminal Code, if they have not actually served their sentences in institutions of the penal correction system, are not considered persons who have previously served their sentences.

The footnote. Paragraph 6, as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication); dated 12/11/2020 No. 6 (effective from the date of the first official publication).

     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 in the past, by a court verdict that entered into force, were sentenced to imprisonment for committing an intentional crime and served their sentences in institutions of the penal enforcement system, unless this conviction was removed and extinguished in accordance with the established procedure. in accordance with the law at the time of the commission of a new crime. This rule also applies to persons sentenced to imprisonment for committing an intentional crime at a minor age.

     The footnote. The regulatory resolution was supplemented by paragraph 6-1 in accordance with the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 11.12.2020 No. 6 (effective from the date of the first official publication).

Based on the priority of international treaties stipulated in paragraph 3 of Article 4 of the Constitution of the Republic of Kazakhstan, persons convicted under sentences of another State may be recognized as having previously served a sentence of imprisonment with the reasons for the decision given in the verdict. The possibility of recognizing sentences of other countries is provided for by the Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters, done in Minsk on January 22, 1993, and its Protocol of March 28, 1997 (on convictions that occurred after September 17, 1999), and the Convention on Legal Assistance and Legal Relations in civil, family and criminal cases committed in Chisinau on October 7, 2002 (based on convictions that took place after April 27, 2004).

Persons who have previously served a custodial sentence and who have been sentenced by a court (fine, correctional labor, restriction of liberty) on the grounds provided for in part three of Articles 41, 42, 44 of the Criminal Code have been commuted to imprisonment cannot be considered as having previously served a custodial sentence.

     Persons to whom the penalty imposed by the court verdict in the form of a fine, correctional labor, community service, or restriction of liberty has been replaced by imprisonment, are assigned to serve their sentence in institutions of the medium-security penal system.

     If the restriction of liberty is replaced by deprivation of liberty to persons to whom the deprivation of liberty was previously replaced by restriction of liberty in accordance with Article 73 of the Criminal Code, the serving of the deprivation of liberty is determined in the institution of the penal system from which he was released.

      They also cannot be considered as having previously served a prison sentence.:

      persons who were in places of deprivation of liberty by a court verdict before the case was considered in cassation, if the said court overturned the sentence with the termination of the case or changed it and imposed a non-custodial sentence, or applied a suspended sentence to imprisonment or suspended execution of the sentence.;

     persons who were sentenced to imprisonment, but did not actually serve their sentence and were not in prison due to the postponement of serving their sentence to pregnant women, women with young children, and men raising young children alone (Article 74 of the Criminal Code), or release from punishment due to illness (article 75 of the Criminal Code), due to a combination of difficult circumstances (Article 76 of the Criminal Code) or in connection with the failure to execute a sentence due to the expiration of the statute of limitations of the conviction (Article 77 of the Criminal Code) or the application of an amnesty act or release from serving a sentence by way of pardon (Article 78 of the Criminal Code);

      persons who were sentenced to imprisonment within the period of their detention as a preventive measure because they did not serve their sentences in institutions of the penal system;

      persons serving a custodial sentence, if convicted of criminal offenses committed prior to sentencing, according to which they are serving their first custodial sentence.;

      persons who have been sentenced to imprisonment and have served their sentences in places of deprivation of liberty for acts whose criminality and punishability are eliminated by the current law, as well as if the current law does not provide for punishment in the form of imprisonment for their commission.

     The footnote. Paragraph 8, as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 04/21/2011 No. 1 (effective from the date of official publication); dated 04/20/2018 No. 8 (effective from the date of the first official publication); dated 12/11/2020 No. 6 (effective from the date of the first official publication).      RCPI's note!       Paragraph 9 was amended only in the state language by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 06/29/2009 No. 4.

Male persons sentenced to imprisonment for committing a crime with a dangerous relapse of crimes, as well as those sentenced to life imprisonment, regardless of whether they have previously served a custodial sentence, must serve their sentences in institutions of the penitentiary system of emergency security.

     The footnote. Paragraph 9 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication).

In case of conviction of a male person to imprisonment for a term of more than five years for committing particularly serious crimes, as well as in case of dangerous recidivism of crimes and appointment, in accordance with part six of Article 46 of the Criminal Code, to serve part of the sentence, but not more than five years in institutions of the penitentiary system of complete security, it is necessary to motivate in the verdict the decision taken make a decision and specify the length of sentence the convicted person should serve in institutions of the penitentiary system of complete security. At the same time, in the operative part of the sentence, it should be indicated in which institutions of the penal system the convicted person should serve the remainder of the sentence.

     The footnote. Paragraph 10 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication).

Criminal records that have been removed or expunged in accordance with the procedure provided for in Article 79 of the Criminal Code, removed by an act of amnesty or pardon in accordance with parts two and four of Article 78 of the Criminal Code, are not taken into account when recognizing a recidivism of crimes and cannot be the basis for appointing an institution of maximum and extreme security penal system.

     Convictions for crimes committed under the age of eighteen are not taken into account when recognizing recidivism. At the same time, persons sentenced to imprisonment who previously served imprisonment for committing an intentional crime as a minor are assigned to serve their sentences in institutions of the maximum security penal system, taking into account the rules of paragraph 3) of part five of Article 46 of the Criminal Code.

     The footnote. Paragraph 11 is amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 11.12.2020 No. 6 (effective from the date of the first official publication).

The decision to recognize the commission of a crime with a corresponding recidivism of crimes must be indicated in the operative part of the sentence with reference to the norm of the criminal law.

     If, if there are grounds, the court has not recognized the recurrence of crimes and has not indicated this in the operative part of the verdict, then it has no right to appoint the institution of the penal enforcement system, which is possible only with the recurrence of crimes.

     The footnote. Paragraph 12 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication).

A minor sentenced to imprisonment is ordered by the court to serve his sentence in an institution of the medium-security penal system for the detention of minors. Upon reaching the age of majority, convicted persons, with their consent, may be left in an institution until they reach the age of twenty-one. The decision to leave convicts who have reached the age of eighteen in the above-mentioned institution is made by the court on the basis of a submission from the head of the institution.

      A person who has committed a criminal offense as a minor and has reached the age of majority at the time of sentencing, when sentenced to imprisonment, the type of institution of the penal system is assigned in accordance with article 46 of the Criminal Code as a person who has reached the age of majority.

The footnote. Paragraph 13 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication).

When imposing a custodial sentence based on a set of criminal offenses or a set of sentences, the court must appoint the type of institution of the penal enforcement system after determining the final penalty.

      If a person is convicted of a combination of criminal offenses, some of which were committed negligently and others intentionally, the court has the right to order serving the sentence in an institution of the minimum security penal system only if a punishment not related to imprisonment is imposed for an intentional criminal offense, or if the intentional crime committed by the convicted person is included in the list of criminal acts. provided for in paragraph 1) the fifth part of Article 46 of the Criminal Code.

      If, in accordance with article 46 of the Criminal Code, serving sentences in the form of imprisonment for crimes included in the aggregate is provided for in different types of institutions of the penal system, then when determining the final punishment, a more stringent type of institution of the penal system is assigned.

     In the case of a combination of sentences for serving imprisonment, the stricter type of institution established by one of the sentences included in the combination is determined.

      If for crimes included in the aggregate, the final punishment is imposed by absorbing the non-custodial punishment by imprisonment, then the type of institution of the penal enforcement system is appointed in accordance with the procedure provided for in Article 46 of the Criminal Code, taking into account only the crime for which the penalty is imprisonment.

     The footnote. Paragraph 14, as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication); dated 12/11/2020 No. 6 (effective from the date of the first official publication).

In case of a suspended sentence to imprisonment, the type of institution of the penal system is not assigned. If a probationer has committed a new criminal offense during probation control and is sentenced on the basis of article 60 of the Criminal Code based on a set of sentences, the type of institution of the penal enforcement system is appointed in accordance with the procedure provided for in Article 46 of the Criminal Code, taking into account the severity of both the crime committed during probation control and the crime for which he was He was previously sentenced to probation.

     In the same manner, the type of institution of the penal enforcement system is assigned if a person who has been released on parole has committed a new criminal offense during the period of parole and is being punished based on the totality of sentences.

     The footnote. Paragraph 15 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication).

     15-1. When applying, on the basis of article 74 of the Criminal Code, a delay in serving a sentence to a person sentenced to imprisonment, the type of institution of the penal system must be indicated in the court verdict.

      In case of cancellation of the suspended sentence on the basis of the third part of Article 64 of the Criminal Code in view of the malicious non-fulfillment by the conditionally convicted person during the probation control period of the duties assigned to him, he is assigned to serve his imprisonment in institutions of the penal system in accordance with Article 46 of the Criminal Code.

     In case of cancellation of conditional early release on the basis of paragraph 1) of the seventh part of Article 72 of the Criminal Code, the convicted person's imprisonment is determined in the institution of the penal system from which he was released on parole.

     The footnote. The regulatory resolution was supplemented by paragraph 15-1 in accordance with the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 11.12.2020 No. 6 (effective from the date of the first official publication).

The type of institution of the penal enforcement system is changed in accordance with paragraph 4) of Article 476, Articles 477, 478 of the Criminal Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC) by a district and equivalent court, at the place of execution of the sentence, and in its absence - by a higher court at the request of the convicted person or by submitted by the institution on the basis of Article 96 of the Criminal Executive Code of the Republic of Kazakhstan (hereinafter referred to as the PEC).

     The footnote. Paragraph 16 as amended by the regulatory decree of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication).

When deciding, in accordance with article 96 of the Criminal Code, on the transfer of convicts with a second or third positive degree of behavior for further serving their sentences from one type of institution of the penal system to another, providing for a more lenient type of detention, one should proceed from the total term of punishment imposed by the court verdict, and not from the length of stay. convicted in an institution of the penitentiary system with a more lenient regime.

     The courts have no right to refuse to transfer a convicted person to a more lenient type of institution of the penal enforcement system on grounds not provided for by law, such as: the leniency of the sentence imposed, the short duration of the convicted person's stay in this institution of the penal enforcement system, denial of guilt to the convicted person, the presence of previous convictions, serving sentences for serious and especially serious criminal offenses, etc.

     The footnote. Paragraph 17 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication).

When considering cases on appeal and cassation, courts should check the correctness of determining the type of institution of the penal system for persons sentenced to imprisonment.

     If the court of first instance unreasonably appoints a stricter type of institution of the penal enforcement system than is provided for by law, or if there is no indication in the operative part of the sentence on the appointment of an institution of the penal enforcement system, the higher court must appoint an institution of the penal enforcement system to the convicted person in accordance with the law.

      In case of incorrect appointment of a mild type of institution of the penal enforcement system to a convicted person, the court of appeal, in accordance with articles 433, 442 of the Code of Criminal Procedure, without sending the case for a new hearing, has the right to cancel the appointment of a milder type of institution of the penal enforcement system than provided for by law, and appoint an institution of the penal enforcement system in accordance with the Criminal Code only if if, on this basis, a petition has been filed by the prosecutor or a complaint has been filed by the victims, the private prosecutor, or their representatives.

      In accordance with part nine of Article 494 of the CPC, the court of cassation, upon the protest of the prosecutor or the complaint of the victim, the private prosecutor or their representatives, has the right to cancel the appointment of a milder type of institution of the penal system to the convicted person than provided for by law, and appoint an institution of the penal system in accordance with the Criminal Code, if the one-year period has not expired. which makes it possible to worsen the situation of the convicted person after the sentence enters into legal force.

     The footnote. Paragraph 18 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication).

In connection with the adoption of this regulatory resolution, to invalidate the resolution of the Plenum of the Supreme Court of the Kazakh SSR No. 4 dated December 7, 1961 "On judicial practice in determining the type of correctional labor institution for persons sentenced to imprisonment" (with subsequent amendments and additions).

According to article 4 of the Constitution of the Republic of Kazakhstan, this regulatory resolution is included in the current law, and is also generally binding and effective from the date of its official publication.

        Chairman of the Supreme Court

Republic of Kazakhstan

Judge of the Supreme Court

Republic of Kazakhstan,

Secretary of the plenary session

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