On reviewing the provisions of Parts three and five, subitems 1) and 3) of Part six of Article 141 of the Criminal Executive Code of the Republic of Kazakhstan dated July 5, 2014 for compliance with the Constitution of the Republic of Kazakhstan
Regulatory Resolution of the Constitutional Court of the Republic of Kazakhstan dated March 27, 2023 No. 6
The Constitutional Court of the Republic of Kazakhstan, composed of Chairman Azimova E.A., judges Eskendirov A.K., Zhakipbaev K.T., Zhatkanbayeva A.E., Musin K.S., Nurmukhanov B.M., Ongarbaev E.A., Podoprigora R.A., Sarsembaev E.J. and Udartseva S.F. with the participation of the subject of the appeal, citizen Naumtsev S.V. and representatives:
Senate of the Parliament of the Republic of Kazakhstan – deputy of the Senate of Parliament Tolamisov A.G.,
Ministry of Internal Affairs of the Republic of Kazakhstan – First Deputy Minister M.S. Kozhaev,
The Prosecutor General's Office of the Republic of Kazakhstan – Advisor to the Prosecutor General Adamova T.B.
In an open meeting, I considered the appeal of citizen S.V. Naumtsev on reviewing the provisions of Parts three and five, subitems 1) and 3) of part six of Article 141 of the Penal Enforcement Code of the Republic of Kazakhstan dated July 5, 2014 (hereinafter referred to as the PEC) for compliance with the Constitution of the Republic of Kazakhstan.
Having listened to the speakers – judges of the Constitutional Court of the Republic of Kazakhstan K.T. Zhakipbaev and E.Zh. Sarsembaev, having studied the materials of the constitutional proceedings, having analyzed the legislation of the Republic of Kazakhstan and international experience, the Constitutional Court of the Republic of Kazakhstan
installed:
The Constitutional Court of the Republic of Kazakhstan has received an appeal from citizen S.V. Naumtsev to review the provisions of Parts three and five, subitems 1) and 3) of Part six of Article 141 of the Criminal Code for compliance with Article 14 of the Constitution of the Republic of Kazakhstan.
In accordance with parts three and five of Article 141 of the Criminal Code of the Russian Federation, a convicted person serving life imprisonment is placed in normal conditions of serving his sentence upon arrival at an emergency security facility, from which transfer to light conditions of serving is possible in the absence of punishment only after ten years. The same period is set for re-transfer to normal or simplified conditions of serving a sentence. In turn, for a person sentenced to a certain term of imprisonment serving a sentence in the same institution, a change in the conditions of serving a sentence is possible after one year (Article 139 of the Criminal Code).
Subparagraph 1) of the sixth part of Article 141 of the Criminal Code provides for the right of a convicted person serving life imprisonment in normal conditions to spend monthly on the purchase of food and basic necessities the funds available in the control accounts of the temporary placement of money in the amount of up to two monthly calculation indices. When serving a sentence in strict conditions, he also has the right to spend up to two monthly calculation indices (subparagraph 1) of the eighth part of Article 141 of the Criminal Code).
Subparagraph 3) of the sixth part of Article 141 of the Criminal Code provides for the right of a convicted person serving life imprisonment under normal conditions to have four short-term visits during the year, whereas a person sentenced to a certain term of imprisonment while serving his sentence in an emergency security facility under normal conditions has the right to have three short-term and one long-term visits during the year (subparagraph 3) the second part of Article 140 of the Criminal Code).
According to the subject of the appeal, these provisions of the PECS contradict the constitutional provisions that "everyone is equal before the law and the court" and that "no one can be discriminated against in any way ... for other reasons" (article 14 of the Constitution).
When considering the constitutionality of the provisions of Parts three and five, subitems 1) and 3) of Part six of Article 141 of the Criminal Code of the Russian Federation in relation to the subject of the appeal, the Constitutional Court proceeds from the following.
In the Republic of Kazakhstan, human rights and freedoms are recognized and guaranteed in accordance with the Constitution. Human rights and freedoms belong to everyone from birth, are recognized as absolute and inalienable, and determine the content and application of laws and other normative legal acts (paragraphs 1 and 2 of Article 12 of the Constitution). These constitutional provisions should be understood in the sense that the human rights and freedoms proclaimed by the Constitution are fundamental in the development and adoption of laws and other normative legal acts establishing the conditions and procedure for the exercise of these rights and freedoms (normative Resolution of the Constitutional Council of October 28, 1996 No. 6/2).
Equality of all before the law and the courts, prescribed by article 14 of the Constitution, as well as the constitutional provision that no one may be subjected to any discrimination based on origin, social, official and property status, gender, race, nationality, language, attitude to religion, beliefs, place of residence or any other circumstances. They mean equality of individual rights and duties, equal protection of these rights by the State, and equal responsibility of the individual before the law. It is the laws that define the specific conditions and circumstances that make it possible to realize human and civil rights and freedoms (normative resolutions of the Constitutional Council of March 10, 1999 No. 2/2, March 29, 1999 No. 7/2 and others).
At the same time, any legislative restrictions on human rights and freedoms must be adequate to legally justified goals and meet the requirements of fairness, proportionality and proportionality (normative resolutions of the Constitutional Council of February 27, 2008 No. 2, August 20, 2009 No. 5, December 14, 2016 No. 1).
United Nations General Assembly (UNGA) Resolution 69/172 of December 18, 2014, "Human rights in the administration of justice," recognizes the importance of the principle that persons deprived of their liberty should continue to enjoy non-derogable human rights and all other human rights and fundamental freedoms, with the exception of those legitimate restrictions that require which is clearly conditioned by the fact of deprivation of liberty. The social rehabilitation and reintegration of persons deprived of their liberty, as one of the most important goals of the criminal justice system, should be aimed at ensuring, as far as possible, that offenders are prepared to lead a law-abiding lifestyle and ensure their existence upon their return to society.
Life imprisonment may be imposed for the commission of particularly serious crimes (part four of Article 46 of the Criminal Code of the Republic of Kazakhstan dated July 3, 2014, hereinafter referred to as the Criminal Code). Serving imprisonment in institutions of the penitentiary system of emergency security is assigned in case of dangerous recidivism of crimes, as well as to persons sentenced to life imprisonment (part five of Article 46 of the Criminal Code).
When imposing punishment, the court takes into account the nature and degree of public danger of the criminal offense, the identity of the perpetrator, including his behavior before and after the commission of the offense, circumstances mitigating and aggravating responsibility and punishment, as well as the impact of the imposed punishment on the correction of the convicted person and on the living conditions of his family or dependents (part three Article 52 of the Criminal Code). These circumstances, which are taken into account when imposing the main punishment for dangerous recidivism of crimes, as well as for persons sentenced to life imprisonment, are reflected in the terms of imprisonment and the type of institution determined by them.
The specific conditions and features of serving a sentence in an emergency security facility are determined by the norms of the Criminal Code (Articles 139, 140, 141 and others). These provisions, together with article 5 of the Criminal Code, are based on the principles of: differentiation of conditions for the execution of sentences; individualization of the execution of sentences and other measures of criminal legal impact; rational use of coercive measures; combination of punishment with corrective action.
The principles of penal enforcement legislation are implemented through the basic means of correction of convicts established by law, which are applied taking into account the type of punishment, the nature, degree of public danger, the form of guilt and motives of the criminal offense committed, the personality of the convicted person and his behavior during serving the sentence (part two of Article 7 of the Criminal Code).
The procedure for the execution and serving of sentences, as well as other measures of criminal legal impact, must take into account the need to comply with constitutional norms on the inviolability of human dignity, the inadmissibility of torture, violence, and other cruel or degrading treatment or punishment, as well as the provisions of international legal acts recognized by the Republic in this matter.
The legislator, regulating this sphere of public relations, should be based on the constitutional provision that the Republic of Kazakhstan asserts itself as a state governed by the rule of law, the highest values of which are man, his life, rights and freedoms (paragraph 1 of Article 1 of the Constitution). The Basic Law recognizes the equality of all before the law and the courts (article 14), the inviolability of human dignity (article 17), as well as the protection of marriage and family, motherhood, fatherhood and childhood by the State (article 27).
Convicted persons have the rights, freedoms and duties of citizens of the Republic of Kazakhstan subject to the restrictions established by the Constitution, the Criminal Code and other laws of the Republic of Kazakhstan (Part two of Article 9 of the Criminal Code).
The Criminal Code, defining the type of institution – emergency security – when imposing an appropriate punishment, does not differentiate this type of institution depending on the persons who are assigned to serve their sentences in it (those sentenced to life imprisonment or to imprisonment for a certain period).
In the opinion of the Constitutional Court, the differentiation of the conditions of serving a sentence should be reasonable, should not lead to discrimination and should not apply to measures that encourage the correction of convicts and ensure their re-socialization.
The order of execution of punishment is closely interrelated with the goals of punishment, which are to restore social justice, as well as to correct the convicted person and prevent the commission of new criminal offenses by both convicted and other persons. The punishment is not intended to cause physical suffering or humiliation of human dignity (part two of Article 39 of the Criminal Code).
The treatment of persons sentenced to imprisonment, regardless of the length of the sentence determined by the court, should contribute to their personal correction and social rehabilitation.
This approach of the legislator to the principles of sentencing corresponds in the context of generally recognized international obligations with the recognition by penal enforcement legislation of the importance of educational influence (including measures of encouragement and punishment) and the transfer of convicts from one condition of serving their sentence to another. When legally regulating them, it is necessary to take into account that they not only potentially contribute to the correction of a convicted person, but are also designed to ensure the realization of the rights of his family members in the field of family relations.
The correction of a convicted person is understood as the formation of his law-abiding behavior, a positive attitude towards the individual, society, work, norms, rules and ethics of behavior in society (subparagraph 10) of Article 3 of the Criminal Code).
The PEC recognizes the principle of humanism, which is also aimed at preserving and developing socially useful ties between the convict and loved ones. Communication with the outside world, communication with family and other close people while serving a sentence contribute to the successful re-socialization of the convicted person and reduce the rate of recidivism. In this sense, the family is the main social institution that performs this function in relation to a convicted person, both during his stay in a correctional institution and after his release. Accordingly, the interaction of a convicted person serving a sentence in a correctional institution with family members in the form of visits, calls, correspondence, sending parcels and transfers affects his successful socialization.
Maintaining positive social ties of a convicted person is one of the main means of his correction (subparagraph 3) of the first part of Article 7 of the Criminal Code). Such connections are also important from the point of view of the possibility of early return to society of persons sentenced to life imprisonment.
The Constitutional Court considers that any differentiation in the rights of citizens must meet the requirements of the Constitution, including those arising from the principles of equality (Article 14), inviolability of human dignity (Article 17), being under the protection of the state of marriage and family, motherhood, fatherhood and childhood (Article 27), according to which such differences are permissible. if they are objectively justified, justified and pursue constitutionally significant goals, and the legal means used are proportionate to them.
In this sense, the differences in the time limits disputed by the subject for changing the conditions of serving sentences for persons sentenced to life or certain terms of imprisonment, contained in parts three and five of Article 141 of the Criminal Code, are due to the need to differentiate the conditions and individualization of the execution of punishment, as well as other measures of criminal legal impact and are consistent with the above-mentioned constitutional norms.
The Constitutional Court also does not see a violation of the constitutional rights of convicted persons in subparagraph 1) of part six of Article 141 of the Criminal Code, which provides for the amount of money for monthly spending on the purchase of food and basic necessities under normal conditions of serving a sentence, equal to the amount under strict conditions of serving a sentence, since similar amounts of money are provided for those sentenced to certain terms incarceration of persons serving sentences in the same type of institution.
Subparagraph 3) of the second part of Article 140 of the Criminal Code establishes the right of persons sentenced to certain terms of imprisonment, under normal conditions of serving their sentence, to have not only three short-term, but also one long-term visit during the year.
However, subparagraph 3) of the sixth part of Article 141 of the Criminal Code does not contain the right to a long-term visit in relation to persons serving life imprisonment in the same emergency security facility under normal conditions, that is, in a similar situation.
At the same time, according to the Constitutional Court, the lack of the right to a long-term appointment during the first ten years of serving a life sentence prevents a full assessment of the behavior of such a convict, which does not contribute to the individualization of measures of educational influence on him.
In this regard, the provisions of subparagraph 3) of the sixth part of Article 141 of the Criminal Code infringe on the constitutional rights of convicts and have no objective, reasonable justification, taking into account the identity or similarity of the situation.
The Constitutional Court took into account the information provided by a representative of the Senate of the Parliament of the Republic of Kazakhstan on amendments to the PECS in the framework of the Law of the Republic of Kazakhstan "On Amendments and Additions to Certain Legislative Acts of the Republic of Kazakhstan on human rights in the field of criminal proceedings, execution of punishment, as well as the prevention of torture and Other cruel inhuman or degrading treatment" (hereinafter referred to as the Law).
The law excluded article 141 from the PEC, which is disputed by the subject of the appeal. In addition, the order and conditions of detention of those sentenced to life imprisonment have been changed. The term of transfer of such convicts from one condition of serving to another has been reduced from ten to five years; in normal conditions of serving a sentence, the amount of money of convicts for the purchase of food and basic necessities has been increased from two to five monthly calculation indices; the right to one long-term visit during the year has been introduced (new edition of articles 139 and 140 PEC).
The Law was signed by the President of the Republic of Kazakhstan on March 17, 2023 and will enter into force sixty calendar days after the date of its first official publication.
Based on the above, guided by paragraph 3 of Article 72, paragraph 3 of Article 74 of the Constitution of the Republic of Kazakhstan, subparagraph 3) paragraph 4 of Article 23, Articles 55-58, 62-65 of the Constitutional Law of the Republic of Kazakhstan dated November 5, 2022 "On the Constitutional Court of the Republic of Kazakhstan", in relation to the subject of the appeal, the Constitutional Court of the Republic of Kazakhstan
Decides:
To recognize parts three, five and subparagraph 1) of part six of Article 141 of the Criminal Executive Code of the Republic of Kazakhstan as corresponding to Article 14 of the Constitution of the Republic of Kazakhstan.
To recognize subparagraph 3) of the sixth part of Article 141 of the Penal Enforcement Code of the Republic of Kazakhstan as inconsistent with Articles 14, 17 and 27 of the Constitution of the Republic of Kazakhstan.
Before the amendments to the Penal Enforcement Code of the Republic of Kazakhstan are put into effect, the provisions of subparagraph 3) of part two of Article 140 of the Penal Enforcement Code of the Republic of Kazakhstan regarding the number of short-term and long-term visits provided for during the year should be extended to those sentenced to life imprisonment serving their sentences in normal conditions.
This regulatory resolution comes into force from the date of its adoption, is generally binding throughout the Republic, final and not subject to appeal.
To publish this regulatory resolution in Kazakh and Russian in periodicals that have received the right to officially publish legislative acts, the unified legal information system and on the Internet resource of the Constitutional Court.
Constitutional Court of the Republic of Kazakhstan
© 2012. RSE na PHB "Institute of Legislation and Legal Information of the Republic of Kazakhstan" of the Ministry of Justice of the Republic of Kazakhstan
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