On release from further serving of the sentence, replacement of the unserved part of the sentence with a more lenient type of punishment due to illness

Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated April 11, 2002 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).

     Having discussed the results of the generalization of the practice of applying legislation by courts on the release of persons from further serving their sentences, replacing the unserved part of the sentence with a milder type of punishment due to illness, in order to form a correct judicial practice, the plenary session 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).

To clarify that, in accordance with article 75 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code), the grounds for releasing a person from further punishment due to illness are:

      the onset of a mental disorder in a person while serving a sentence, which makes it impossible for him to realize the actual nature and social danger of his actions (inaction) or to direct them, as a result of which further execution of the punishment becomes impossible.;

     the person has another serious illness that prevents him from serving his sentence, except for persons serving life imprisonment.

     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).

A person is subject to release from serving a sentence due to the onset of a mental disorder, regardless of the severity of the criminal offense committed, the duration of the sentence imposed, the amount of the unserved portion 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 enter into the discussion of these issues.

      On the basis of paragraph 2) of the first part of Article 91 of the Criminal Code, compulsory medical measures provided for in Article 93 of the Criminal Code may be simultaneously imposed on a person released from serving a sentence due to a mental disorder.

      At the same time, compulsory medical measures are prescribed only in cases where painful mental disorders are associated with the possibility of these persons causing other significant harm 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.

     The footnote. Paragraph 2 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 person suffering from another disease is released by a court from serving a sentence in accordance with part two of Article 75 of the Criminal Code only if the disease identified by the medical commission is included in the List of diseases that are grounds for exemption from serving a sentence, approved 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 diseases).

      The presence of a serious illness in the convict and the impossibility of further serving the sentence in this regard is established by the conclusion of a special medical commission, which is issued after thorough medical examinations of the patient, indicating the failure of the treatment.

     The footnote. Paragraph 3 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).      4. Excluded 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 person suffering from another serious illness that prevents him from serving his sentence, other than life imprisonment, may be released from serving his sentence by a court or the punishment may be replaced by a more lenient type of punishment.

      Such a substitution 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 Article 40 of the Criminal Code).

     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 the disease prevents him from serving the sentence. The replacement of an unserved sentence with a suspended sentence or its reduction is not allowed.

     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).

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 releasing a person from further punishment due to illness is considered by the court at the request of the convicted person or on the recommendation of an institution or body, executing the punishment.

     The submission of the administration of the institution or body executing the punishment must contain information about the convicted person, the nature of the disease he suffers from, and in relation to a person suffering from another serious illness, information about the severity of the criminal offense he committed, his personality, and behavior during the period of serving the sentence.

      The relevant documents must be attached to the administration's submission (petition of the convicted person) for the release of the person from further serving the sentence, on the basis of which the court must make a decision: a medical report, an extract from a copy of the sentence, an extract from the List of diseases, as well as documents indicating the actual time served, the behavior of the convicted person while serving the sentence, and other characterizing data.

     Simultaneously with the submission of the administration (petition of the convicted person), the personal file of the convicted person is sent to the court, the materials of which are subject to examination at the court session.

     The footnote. Paragraph 6 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).

      6-1. Courts should keep in mind that in order to verify the authenticity of a convicted person's disease, which is listed in the List of Diseases and is the basis for submitting him to be released from serving his sentence due to illness, the head of the institution or body executing the punishment, by decision of the medical advisory commission of the medical and preventive institution, sends the convicted person for examination by a Special Medical Commission (hereinafter referred to as the QMS).

      The examination of the convicted person and the giving of a conclusion is carried out by the QMS in accordance with Article 162 of the Criminal Code and the Rules of Medical examination of convicts submitted for release from serving their sentence due to illness, approved by Order of the Minister of Internal Affairs of the Republic of Kazakhstan dated August 19, 2014 No. 530.

     The footnote. The Resolution was supplemented by paragraph 6-1 in accordance with the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/21/2011 No. 1 (effective from the date of official publication); 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).

Recognition of a person serving a sentence of community service, correctional labor, or restriction of liberty as a disabled person of the first or second group, according to part seven of article 162 of the Criminal Code, is the basis for submitting to the court a submission on early release of the person from further serving the sentence or commutation to a more lenient type of punishment.

     The footnote. Paragraph 7 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 court's refusal to release a person from further serving his sentence due to illness is not an obstacle to the consideration of this issue upon the repeated submission of the administration or the petition of the convicted person.

     In respect of convicted persons to whom the court has refused release from serving their sentence due to illness, in the event of a deterioration in their health that prevents them from serving their sentence, the materials are re-sent to court on the basis of an appropriate medical report, regardless of the time the court issued the decision on refusal.

     The footnote. Paragraph 8 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/21/2011 No. 1 (effective from the date of its official publication).

The court must 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 part six of Article 478 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, and evidence that inpatient treatment did not produce positive results, that the disease has irreversible consequences, is progressing, and therefore prevents further serving of the sentence.

     In case of doubts about the validity of a medical opinion, the court has the right to appoint an appropriate expert examination.

     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).

The issue of releasing a person from further serving a sentence, 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 of the CPC.

     The footnote. Paragraph 10, 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).

If it appears from the presentation of the administration and the medical opinion that compulsory medical measures should be applied to a person who has a mental disorder while serving his sentence, then on the basis of paragraph 7) of Article 476 of the CPC, the issue of releasing him from serving his sentence due to illness is considered simultaneously with the issue of applying compulsory medical measures.

     The footnote. Paragraph 11, 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).

In accordance with part four of Article 481 and part six of Article 478 of the CPC, when considering the issue of release from punishment due to illness, the participation in a court hearing of a defender, a legal representative, a prosecutor, a representative of an institution or body executing punishment, a representative of the medical commission that issued the conclusion is mandatory. If necessary, an expert who conducted the examination by court order and gave an opinion shall participate in the court session.

      If a convicted person participates in a court hearing, the court should ensure that he can exercise his rights in accordance with the procedure provided for in part four of Article 478 of the CPC.

     The footnote. Paragraph 12, 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).

A protocol is kept at the court session, which should reflect all the actions of the court and the participants in the process, the explanations of the convicted person, whose participation is possible for health reasons, the representative of the medical commission that gave the conclusion, the representative of the body that sent the presentation, the opinions of the defender and the prosecutor.

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 punishment 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 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.

A copy of the decision based on the results of consideration of the administration's submission or the convicted person's petition must be sent for inclusion in the case to the court that issued the sentence, to institutions or bodies executing the punishment, and in relation to the minor, also to the commission for juvenile affairs at his permanent place of residence.

     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).

Control over the behavior of a person released from further punishment due to a mental disorder or other serious illness is carried out by institutions or bodies executing punishment.

     The footnote. Paragraph 16 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 accordance with the third part of Article 75 and Article 97 of the Criminal Code, if a person suffering from a mental disorder or other serious illness recovers after the circumstances preventing the serving of the sentence have disappeared, the execution of the sentence against him must be resumed if the limitation periods for the execution of the conviction provided for in articles 71, 77, 88 of the Criminal Code have not expired or are absent. the grounds for his release from criminal liability and punishment.

      The fact of a person's recovery or cure is established by the conclusion of the relevant commission of doctors, which is subject to thorough verification by the court.

      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.

     The resumption of the execution of punishment is carried out by a court order on the recommendation of the institution or body executing the punishment.

     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).

In the case of a new criminal offense committed by a person who has been released from further punishment due to illness, he is subject to mandatory examination by a commission of doctors in order to determine whether he has recovered. The medical report of the criminal prosecution authorities must be attached to the materials of the criminal case.

      If a person released from further punishment due to illness commits a new criminal offense before recovery, he is liable only for the new criminal offense, 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 criminal offense after recovery and the circumstances preventing the serving of the sentence have disappeared, then in accordance with the first part 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 criminal offense, if there is a court order to resume the execution of the sentence under the previous sentence.

     If a person commits a new criminal offense while serving a more lenient type of punishment, which replaced the previous punishment, the punishment is imposed according to the rules of Article 60 of the Criminal Code.

     The footnote. Paragraph 18, 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).

A court decision on the issue of releasing a person from further serving a sentence, replacing the unserved part of the sentence with a more lenient type of punishment due to illness, may be reviewed on appeal.

     The footnote. Paragraph 19, 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).      20. Excluded by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/21/2011 No. 1 (effective from the date of its official publication).

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.

     The footnote. The regulatory resolution was supplemented by paragraph 21 in accordance with 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).

     Chairman of the Supreme Court

Republic of Kazakhstan

Secretary of the plenary session,

Judge of the Supreme Court

Republic of Kazakhstan

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