Establishment of administrative supervision The illegal establishment of administrative supervision led to the termination of the case due to the absence of elements of a criminal offense
By the verdict of the Zharkainsky District Court of the Akmola region dated August 3, 2017, B., previously convicted, was sentenced under Article 43 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code) to 1 year of restriction of freedom, with forced labor for 150 hours per year on the basis of Article 44 of the Criminal Code. By the verdict of the court, B. was found guilty of evading the administrative supervision established by the court for persons released from places of deprivation of liberty, expressed in violation of the established restrictions by arbitrarily leaving their place of residence. The case was not considered on appeal. In the submission, the Chairman of the Supreme Court requests that the sentence against B. be annulled and the criminal case be terminated due to the absence of elements of a criminal offense in his actions. By the decision of the Atbasarsky District Court of the Akmola region dated June 24, 2016, administrative supervision for a period of 1 year was established for B. after he had served his term of criminal punishment. At the same time, the court did not establish any restrictions within the framework of administrative supervision in respect of B.. The restrictions were imposed on him by the district inspector A. On July 8, 2016, in the form of: a ban on leaving the dwelling from 22 to 6 o'clock; mandatory attendance at the Zharkainsky District Police Department for registration on the 5th, 15th, 20th and 25th, and a ban on leaving the city of Derzhavinsk and the Zharkainsky district without the written permission of the leadership of the Zharkainsky District police Department. In violation of his duties, B. On February 5, 15, 20 and 25, 2017, as well as on March 5, 20 and 25, 2017, he did not appear for mandatory registration at the Zharkainsky District Police Department, for which, by a decision of the judge of the Zharkainsky District Court dated April 25, 2017, he was brought to administrative responsibility under part 2 of Article 480 of the Code of the Republic of Kazakhstan on Administrative Offenses (hereinafter – Administrative Code). On June 2, 2017, B. changed his place of residence without notifying the employees of the Zharkainsky district police Department, who carried out administrative supervision.
These actions of B. were recognized as criminal and qualified under Article 431 of the Criminal Code as evasion from administrative supervision established by the court for persons released from places of deprivation of liberty, expressed in the unauthorized abandonment of supervised residence. According to the provisions of the Law of the Republic of Kazakhstan "On Administrative Supervision of persons released from places of deprivation of liberty" and the explanations contained in paragraph 8 of the normative resolution of the Supreme Court dated June 20, 2005 No. 3 "On judicial practice of application of legislation on administrative supervision", the court on the submission of
on the establishment of administrative supervision over a person being released from places of deprivation of liberty, the correctional institution issues a resolution only on the establishment of administrative supervision. Specific restrictions on a supervised person are established by the court on the recommendation of the internal affairs body at the place of residence upon his arrival after serving his sentence. Due to the fact that the establishment of restrictions is the prerogative of the court, their establishment by the district inspector is illegal. In such circumstances, the violation of B. illegally imposed restrictions do not constitute a crime under article 431 of the Criminal Code. Based on the above, the judicial Board for Criminal Cases of the Supreme Court overturned the verdict of the court of first instance, the criminal case was terminated due to the absence of elements of a criminal offense in his actions. In accordance with the procedure provided for in chapter 4 of the Criminal Procedure Code of the Republic of Kazakhstan, B.'s right to rehabilitation and compensation for damage caused by illegal actions of bodies conducting criminal proceedings was recognized. The submission of the Chairman of the Supreme Court of the Republic of Kazakhstan is satisfied.
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