The applicant promptly filed a legal claim with the management of the correctional institution regarding the correctness of determining the exact date of his release, but his appeal was not satisfied. In such circumstances, the adopted judicial acts in this part are subject to change and the actions and omissions of the head of the institution are recognized as illegal.
E. appealed to the court with demands to recognize the actions and inaction of officials of state authorities when considering his complaints, applications, petitions to determine the exact date of the end of the term of imprisonment as illegal and to recover moral damage, and to impose the obligation to make an official apology through the media. He motivated his demands by the fact that he was sentenced to 3 years in prison by the verdict of the Taraz city court of the Zhambyl region dated August 08, 2009. According to the court verdict, the term of serving the sentence was calculated from January 06, 2009. In fact, he served his sentence in the institution ZhD-158/2 DUIS in Zhambyl region until January 06, 2012, while the three-year sentence expired on January 05, 2012, which he drew the attention of the institution's administration while serving his sentence. However, the administration of the institution incorrectly calculated the term of his sentence, informing him that it would expire on January 06, 2012. Realizing that the administration of the institution was incorrectly calculating the term, he and his wife, starting on December 21, 2011, began to apply to the Prosecutor's Office and the Ministry of Internal Affairs for explanations about this, but they did not take measures to prevent his illegal detention in places of detention after serving the sentence imposed by the court. By the decision of the Medeu District Court of Almaty dated April 24, 2012, which was upheld by the decision of the Appellate judicial board of the Almaty City Court dated June 01, 2012 and the decision of the cassation judicial board of this court dated August 16, 2012, the application of E. was denied.
In the petition, the applicant asked to cancel the judicial acts and satisfy his claims, as the court of first and subsequent instances incorrectly applied the rules of law. Having checked the case file and the applicant's arguments, the supervisory judicial board amended the judicial acts adopted in the case, partially satisfying the petitions of E. for the following reasons. Judicial acts that have entered into force in accordance with part 3 of Article 387 of the CPC may be reviewed by way of supervision in the event of a significant violation of substantive or procedural law. Such violations were committed during the consideration of this case. It can be seen from the case file that the effective verdict of the court No. 2 of the city of Taraz dated August 08, 2009 imposed a penalty of 3 (three) in the initiated criminal case. years of imprisonment. The verdict states that the term of serving a sentence in a correctional colony of general regime should be calculated from January 06, 2009. According to the certificate of the institution ZhD-158/2 DUIS in Zhambyl region, he served his sentence in prison from January 06, 2009 to January 06, 2012. In fact, E. released on January 06, 2012 in the morning. During the period of serving his sentence, the management of the institution actually gave him an answer about the date of his upcoming release from prison on January 06, 2012. The subsequent responses of the officials did not contradict this date. In rejecting the application submitted to government officials, the courts of first and subsequent instances referred to part 1 of Article 62 of the Criminal Code, stating that terms of imprisonment are calculated in months and years, as well as to paragraph 2 of article 173 of the Criminal Code, according to which, when calculating the term of punishment in months, it expires on the appropriate date. last month.
The applicant promptly filed a legal claim with the management of the correctional institution regarding the correctness of determining the exact date of his release, but his appeal was not satisfied
At the same time, they pointed out that Ye. had been lawfully released in the morning of January 06, 2012, there had been no violation of the term of his sentence, his appeals had been answered, and disagreement with the content of the answers and misinterpretation of the Penal Enforcement Code could not be grounds for satisfying the application. Meanwhile, the judicial authorities, when verifying the applicant's arguments, misinterpreted the law regarding the calculation of the term of punishment. Indeed, in accordance with the norms of the Criminal and Penal Enforcement Codes cited by the court, the term of imprisonment is calculated in months and years, and when calculating the term of punishment in months, it expires on the appropriate day of the last month, and if this month does not have a corresponding date, on the last day of that month. The normative resolution of the Constitutional Council of the Republic of Kazakhstan No. 2 dated April 13, 2012 "On the official interpretation of the norms of the Constitution of the Republic of Kazakhstan on the calculation of constitutional terms" clarifies the calculation of the constitutional term and the concept of a time period – "year". It states that the constitutional term, set in years, is calculated from the date of the occurrence of the event specified in the Constitution, and expires in the corresponding month and day of the last year of the term. If the deadline falls on a month that does not have a corresponding date, the deadline expires on the last day of that month.
The time period "year" in relation to paragraph 7 of Article 61 of the Constitution should be understood as the current year (from January 01 to December 31). In essence, the provisions stipulated in this resolution on the definition of the calculation of the constitutional term and the concept of the time period "year" are fully consistent and do not contradict the terms specified in articles 62 of the Criminal Code and 173 of the Penal Enforcement Code, as well as the concept of "year". In fact, the end of the year starting on January 01 ends on December 31 of the same year, and not on January 01 of the following year. Therefore, the end of the term of serving a sentence, calculated in years, should not be determined on the same day as the beginning of the term, but rather on the day preceding it. The end of the applicant's three-year sentence on January 05, rather than January 06, 2012, is also indicated by a simple arithmetic calculation of the number of days in each year, which was also not taken into account by the courts. In accordance with paragraph 5-1 of Article 14 of the Criminal Code, the punishment of imprisonment is carried out by correctional institutions of the criminal executive system. Applicant E. He promptly filed a legal claim regarding the correctness of determining the exact date of his release with the management of the ZhD-158/2 facility, but his appeal was not satisfied. In such circumstances, the adopted judicial acts in this part are subject to change, and the actions and omissions of the head of the institution are recognized as illegal. As for other requirements regarding the illegality of actions (omissions) of other officials, they are not directly assigned to the functional duties of determining the date of release of convicts, neither by law nor by official authority. Therefore, there were no grounds for satisfying E.'s claim in this part. There are no legal grounds in the case for the imposition of compensation for moral damage from officials, since their guilt has not been established, and a misinterpretation of the law cannot be attributed to culpable acts.
Provided for in subparagraph 2) Paragraph 3 of Article 951 of the Civil Code of the Russian Federation, compensation for moral damage, regardless of the fault of the causer, is inapplicable in a specific case, since it does not apply to actions to cause harm as a result of unlawful conviction, unlawful prosecution or unlawful use of detention as a preventive measure. This requirement is also not related to the illegal actions of the authorities conducting the criminal process, among which the defendants in this case are not legally included. Accordingly, due to these circumstances, as well as the provisions of civil legislation, there are no legal grounds for imposing an obligation on the defendants to apologize through the media.
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