Commentary on Article 43. Assignment of Community Service under the Criminal Code of the Republic of Kazakhstan

1. Community service consists of the performance by a convicted person of unpaid socially useful work that does not require specific qualifications and is organized by local executive bodies in public places.

2. Community service shall be established for criminal misdemeanors for a period of twenty to two hundred hours, and for minor and medium-gravity crimes — for a period of two hundred to one thousand two hundred hours. Community service shall be performed for no more than four hours per day, with the convicted person being released from the performance of employment duties at their primary place of work for the duration of such service, or performing it during their free time from studies.

2-1. In the event of evasion of community service, it shall be replaced as follows:

1) in respect of persons convicted of a criminal misdemeanor — by arrest at the rate of one day of arrest for every four unserved hours of community service;

2) in respect of persons convicted of a crime — by restriction of liberty or deprivation of liberty at the rate of one day of restriction of liberty or deprivation of liberty for every four unserved hours of community service.

2-2. When a punishment more lenient than that prescribed for the relevant criminal offense is imposed, when punishment is imposed for an unfinished crime, as well as when a punishment is replaced, the term of community service may be below the minimum limit established by this Article.

3. Community service shall not be imposed on pregnant women, women with young children under the age of three, men raising young children under the age of three on their own, women aged fifty-eight years and older, men aged sixty-three years and older, persons with Group I or Group II disabilities, or military personnel.

In accordance with Article 8 of the International Covenant on Civil and Political Rights of December 16, 1966, it is permissible to use compulsory or forced labor performed by prisoners. Article 8.2 of the United Nations Standard Minimum Rules for Non-custodial Measures (the Tokyo Rules), adopted by the United Nations General Assembly on December 14, 1990, provides for the performance of community service among possible forms of punishment alternative to deprivation of liberty.

An analysis of international criminal legislation shows that community service as a form of punishment was introduced into the Criminal Code of Switzerland in 1971 and was applied only to juvenile offenders aged between 7 and 18 years. Subsequently, in Switzerland, community service began to be imposed as a principal punishment on minors and as an additional punishment on adults in certain cantons of the country. Currently, community service is applied, alongside Switzerland, in Italy, Luxembourg, the Netherlands, Finland, Portugal, Scotland, the Czech Republic, Canada, the United States, and other countries.

In the Criminal Code of the Republic of Kazakhstan of 2014, the punishment in the form of community service underwent significant changes compared with the Criminal Code of the Republic of Kazakhstan of 1997. Community service also underwent significant changes as a result of amendments and additions to the Criminal Code introduced by the Laws of the Republic of Kazakhstan dated January 10, 2018, and July 12, 2018.

The essence of the amendments and additions introduced is as follows.

First, whereas previously community service was imposed only for criminal misdemeanors, under the amendments and additions introduced, community service is imposed not only for criminal misdemeanors but also for minor and medium-gravity crimes. Second, before the amendments and additions were introduced, community service for criminal misdemeanors was established for a period of sixty to three hundred hours and was performed for no more than four hours per day, with the convicted person being released from the performance of employment duties at their primary place of work for the duration of such service, or performing it during their free time from studies; if the convicted person had no permanent place of employment and was not engaged in studies, community service could be performed for up to eight hours per day, but no more than forty hours per week. Under the current wording, community service is imposed for criminal misdemeanors for a period of twenty to two hundred hours, and for minor or medium-gravity crimes — for a period of two hundred to one thousand two hundred hours. Community service shall be performed for no more than four hours per day, with the convicted person being released from the performance of employment duties at their primary place of work for the duration of such service, or performing it during their free time from studies. Third, in the event of evasion of community service, it shall be replaced, in respect of persons convicted of a crime, by restriction of liberty or deprivation of liberty at the rate of one day of restriction of liberty or deprivation of liberty for every four unserved hours of community service.

Community service is imposed as a principal punishment for committing criminal misdemeanors and minor and medium-gravity crimes. The essence of this type of punishment lies in the performance by the convicted person of unpaid socially useful work that does not require specific qualifications.

The unpaid nature of the work means the absence of remuneration for the work performed.

The social usefulness of the work lies in the necessity of such work for the population residing in the given locality.

Free time from studies means the period when a person is not engaged in studies. The period necessary for sleep (nighttime) cannot be included in free time.

The types of community service and the facilities where such work is performed are determined by local executive bodies. Such types of work may include urban improvement and landscaping, cleaning streets and courtyards, caring for sick persons, loading and unloading, or other types of socially useful work, etc.

A convicted person studying with a break from work shall be engaged in community service during their free time from studies. If the convicted person has no permanent place of employment and is not engaged in studies, community service shall be performed for up to eight hours per day, but no more than forty hours per week (Part 3 of Article 58 of the Penal Enforcement Code).

The legislator recognizes community service as a more severe punishment than a fine and corrective labor. However, even the most superficial assessment of the punitive properties of this punishment makes it quite obvious that community service is the mildest type of punishment. This is evidenced, at least, by the fact that the performance of unpaid socially useful work is declared to be a condition for releasing the guilty person from the application of other, more severe measures of punishment.

The essence of this type of punishment lies in the compulsory nature of engaging the convicted person in socially useful work. Such work is generally performed during free time from studies, which restricts the convicted person's right to rest and to freely dispose of that time. The punitive content of community service is determined by the systematic nature of its performance (no more than four hours per day, and if the convicted person has no permanent place of employment and is not engaged in studies — up to eight hours per day), since the total term, calculated in days, during which the convicted person will remain in the state of serving this type of punishment depends on this.

The innovations introduced into criminal legislation consist in the fact that whereas previously community service was imposed only for criminal misdemeanors, now, in accordance with the amendments introduced on July 12, 2018, community service is imposed for minor and medium-gravity crimes. Community service shall not be imposed for grave and especially grave crimes. Previously, community service for criminal misdemeanors was imposed for a period of sixty to three hundred hours, whereas, in accordance with the amendments introduced, it is established for criminal misdemeanors for a period of twenty to two hundred hours, and for minor and medium-gravity crimes — for a period of two hundred to one thousand two hundred hours.

When a punishment more lenient than that prescribed for the relevant criminal offense is imposed (Article 55 of the Criminal Code), when punishment is imposed for an unfinished crime (Article 56 of the Criminal Code), as well as when a punishment is replaced, the term of community service may be imposed below the minimum limit established by the Article under commentary.

If a person sentenced to community service evades its performance, then, in accordance with Part 2-1 of the Article under commentary, it shall be replaced as follows:

1. in respect of persons convicted of a criminal misdemeanor — by arrest at the rate of one day of arrest for every four unserved hours of community service;
2. in respect of persons convicted of a crime — by restriction of liberty or deprivation of liberty at the rate of one day of restriction of liberty or deprivation of liberty for every four unserved hours of community service.

In accordance with Part 7 of Article 24 of the Penal Enforcement Code, the execution of punishment in the form of community service shall be carried out by the probation service at the convicted person's place of residence.

The procedure and conditions for the execution of this type of punishment are determined by Articles 57–62 of the Penal Enforcement Code and the Rules for Organizing the Performance of Community Service by Persons Sentenced to This Type of Punishment, approved by Order of the Minister of Internal Affairs of the Republic of Kazakhstan dated July 2, 2017.

According to Part 1 of Article 57 of the Penal Enforcement Code, punishment in the form of community service consists of the performance by the convicted person of unpaid socially useful work that does not require specific qualifications and is organized by local executive bodies in public places located at the convicted person's place of residence.

Punishment in the form of community service shall be referred for execution no later than ten days from the date on which the probation service receives the court's instruction accompanied by a copy of the court judgment that has entered into legal force. Supervision of the performance of community service by convicted persons shall be carried out by the probation service at the convicted person's place of residence (Part 2 of Article 57 of the Penal Enforcement Code).

The granting of the convicted person regular leave at their primary place of employment shall not suspend the performance of community service (Part 3 of Article 57 of the Penal Enforcement Code).

If a convicted woman becomes pregnant during the period of serving the punishment, the probation service shall submit a motion to the court for postponement of the serving of the punishment from the date on which maternity leave is granted (Part 4 of Article 57 of the Penal Enforcement Code).

If a convicted person is recognized as having a Group I or Group II disability, the probation service shall submit a motion to the court for release from further serving of the punishment (Part 5 of Article 57 of the Penal Enforcement Code).

During the execution of the punishment, the convicted person shall, in accordance with Article 59 of the Penal Enforcement Code, be obliged to:

1. comply with the procedure and conditions for serving the punishment established by the Penal Enforcement Code of the Republic of Kazakhstan;
2. perform work organized by local executive bodies in public places;
3. notify the probation service of a change of place of residence;
4. appear at the probation service once a month for registration and participation in a preventive interview. Valid reasons for failure to appear are specified in Part 2 of Article 53 of the Penal Enforcement Code.

In accordance with Part 3 of Article 60 of the Penal Enforcement Code, a convicted person shall be deemed to be evading the serving of punishment in the form of community service if such person:

1. refuses to commence serving the punishment in the form of community service or fails to appear for community service more than twice within a month without valid reasons, which include illness and other reasons preventing the performance of community service, confirmed by documentary evidence;
2. appears twice during the period of serving the punishment in a state of alcohol, drug, or toxic intoxication, confirmed by a medical examination or, in the absence of such an opportunity, by a commission report of the employer;
3. absconds for the purpose of evading the serving of the punishment;
4. leaves the territory of the Republic of Kazakhstan.

A convicted person shall be deemed to be absconding from the serving of punishment if their whereabouts have not been established for more than fifteen days from the date of failure to appear for registration at the probation service (Part 4 of Article 60 of the Penal Enforcement Code).

In accordance with Part 3 of Article 43 of the Criminal Code, community service shall not be imposed on pregnant women, women with young children under the age of three, men raising young children under the age of three on their own, women aged fifty-eight years and older, men aged sixty-three years and older, persons with Group I or Group II disabilities, or military personnel.

The non-imposition of punishment in the form of community service on pregnant women follows from the principle of humanism and is dictated by the need to protect the interests of the unborn child and the woman herself, as provided for in Article 27 of the Constitution of the Republic of Kazakhstan. In this regard, the stage of pregnancy is irrelevant.

The classification of women with young children under the age of three and men raising young children under the age of three on their own as persons on whom punishment in the form of community service shall not be imposed is обусловлено by concern for children, which also follows from the principle of humanism, and by the need to take into account the interests of the family and young children.

Taking this circumstance into account is also consistent with the provision of Part 3 of Article 52 of the Criminal Code, according to which the court must take into account the impact of the imposed punishment on the rehabilitation of the convicted person and on the living conditions of their family or persons dependent on them. For the recognition of the circumstance under consideration, it is irrelevant whether the minor child is the person's biological child or an adopted child.

The non-imposition of punishment on women aged fifty-eight years and older and men aged sixty-three years and older is associated with their reaching the retirement age established in the Republic of Kazakhstan. In this regard, it should be noted that, according to Article 11 of the Law of the Republic of Kazakhstan dated June 21, 2013, “On Pension Provision in the Republic of Kazakhstan”, the assignment of age-based pension payments to women is carried out as follows: from January 1, 2018 — upon reaching 58.5 years of age; from January 1, 2019 — upon reaching 59 years of age; from January 1, 2020 — upon reaching 59.5 years of age; from January 1, 2021 — upon reaching 60 years of age; from January 1, 2022 — upon reaching 60.5 years of age; from January 1, 2023 — upon reaching 61 years of age; from January 1, 2024 — upon reaching 61.5 years of age; from January 1, 2025 — upon reaching 62 years of age; from January 1, 2026 — upon reaching 62.5 years of age; from January 1, 2027 — upon reaching 63 years of age.

Disability is determined in accordance with the Rules for Conducting Medical and Social Examination, approved by Order of the Minister of Health and Social Development of the Republic of Kazakhstan dated March 31, 2015. According to these Rules, the criterion for establishing Group I disability is a persistent, significant or sharply pronounced impairment of bodily functions caused by diseases, consequences of injuries, or defects, resulting in a sharply pronounced limitation of the ability in one of the following categories of vital activity or a combination thereof:

ability to self-care of the third degree;

ability to move independently of the third degree;

ability to work (working capacity) of the third degree;

ability to learn of the third degree;

ability to orient oneself of the third degree;

ability to communicate of the third degree;

ability to control one's behavior of the third degree.

The criterion for establishing Group II disability is a persistent, pronounced impairment of bodily functions caused by diseases, consequences of injuries, or defects, resulting in a pronounced limitation of the ability in one of the following categories of vital activity or a combination thereof:

ability to self-care of the second degree;

ability to move independently of the second degree;

ability to work (working capacity) of the second degree;

ability to learn of the second degree;

ability to orient oneself of the second degree;

ability to communicate of the second degree;

ability to control one's behavior of the second degree.

The criterion for establishing Group III disability is a persistent, moderately pronounced impairment of bodily functions caused by diseases, consequences of injuries, or defects, resulting in a moderately pronounced limitation of the ability in one of the following categories of vital activity or a combination thereof:

ability to self-care of the first degree;

ability to move independently of the first degree;

ability to work (working capacity) of the first degree;

• ability to learn of the first degree;
• ability to orient oneself of the first degree;
• ability to communicate of the first degree;
• ability to control one's behavior of the first degree.

The criterion for establishing disability for a child under the age of 16 is persistent moderate, pronounced, or significantly and sharply pronounced impairments of bodily functions caused by diseases, consequences of injuries, or defects, resulting in moderate, pronounced, or sharply pronounced limitations of the ability to self-care, move independently, learn, orient oneself, communicate, engage in play and cognitive activities, and control one's behavior.

Punishment in the form of community service shall also not be imposed on military personnel (Part 3 of Article 43 of the Criminal Code). According to subparagraphs 14) and 23) of paragraph 1 of the Law of the Republic of Kazakhstan dated February 16, 2012, “On Military Service and the Status of Military Personnel”, military personnel include citizens of the Republic of Kazakhstan serving in the Armed Forces, as well as citizens of the Republic of Kazakhstan performing military service under contract, who voluntarily entered military service in the Armed Forces for a period established by law.

Commentary to the Criminal Code of the Republic of Kazakhstan, 2021, by Isidor Shamilovich Borchashvili, Honored Figure of Kazakhstan, Doctor of Law, Professor, Academician of the Kazakhstan National Academy of Natural Sciences, member of the Scientific Advisory Councils under the Constitutional Council of the Republic of Kazakhstan and the Supreme Court of the Republic of Kazakhstan, member of the working group on reform of the law enforcement system under the Security Council of the Republic of Kazakhstan, Honored Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.

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