Commentary on Article 44 of the Criminal Code of the Republic of Kazakhstan. Restriction of Liberty

• 1. Restriction of liberty consists of establishing probation supervision over a convicted person for a period of six months to seven years and involving the convicted person in compulsory labor for one hundred hours annually throughout the entire period of serving the sentence. Restriction of liberty is served at the convicted person's place of residence without isolation from society. Compulsory labor is organized by local executive bodies in public places and is performed for no more than four hours per day. Convicted persons who have a permanent place of employment or are engaged in studies, minors, 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 and older, men aged sixty-three and older, persons with Group I or Group II disabilities, as well as convicted persons whose punishment has been replaced with restriction of liberty for a period of less than six months, shall not be involved in compulsory labor.
• 2. Probation supervision is carried out by an authorized state body and, pursuant to a court decision, includes the imposition on the convicted person of the following obligations: not to change their permanent place of residence, place of employment or place of study without notifying the authorized state body exercising supervision over the conduct of the convicted person; not to visit certain places; to undergo a course of treatment for mental and behavioral disorders (diseases) associated with the use of psychoactive substances, as well as sexually transmitted diseases; to provide material support to their family; and to perform other obligations that contribute to the rehabilitation of the convicted person and the prevention of new criminal offenses.
• 3. In the event of malicious evasion of serving restriction of liberty, the unserved portion of the sentence shall be replaced by imprisonment at the rate of one day of imprisonment for each day of restriction of liberty.
• 4. When a punishment more lenient than that prescribed for the given criminal offense is imposed, when punishment is imposed for an unfinished crime, as well as when a punishment is replaced, the period of restriction of liberty may be below the minimum limit established by this Article.

Restriction of liberty, as a type of punishment, is imposed only for the commission of crimes where, taking into account the nature and degree of public danger of the act, all the circumstances of the case and the personal characteristics of the defendant, the court concludes that the purpose of punishment can be achieved without isolating the person from society.

According to Part 1 of the commented Article, restriction of liberty consists of establishing probation supervision over a convicted person for a period of six months to seven years and involving the convicted person in compulsory labor for one hundred hours annually throughout the entire period of serving the sentence.

It follows from this definition that the punitive elements of restriction of liberty consist in involving the convicted person in compulsory labor, as well as imposing certain obligations on such convicted person.

Restriction of liberty is a principal punishment and may be imposed only in cases where this type of punishment is provided for in the sanction of the article of the Special Part of the Criminal Code under which the offender is convicted. At the same time, restriction of liberty may be applied as a more lenient punishment when replacing the unserved portion of a sentence in accordance with Article 73 of the Criminal Code.

Amendments and additions to the content of the institution of restriction of liberty were introduced into the commented Article by the Laws of the Republic of Kazakhstan dated July 3, 2017, and July 12, 2018. According to these amendments and additions, restriction of liberty consists of establishing probation supervision over a convicted person for a period of six months to seven years and involving the convicted person in compulsory labor for one hundred hours annually throughout the entire period of serving the sentence, with such labor being performed for no more than four hours per day. The previous version provided for probation supervision for a period of one to seven years, while the period of involvement in compulsory labor was established at no more than two hundred and forty hours per year. In addition, involvement in compulsory labor was provided for up to eight hours per day, but no more than forty hours per week.

According to Article 64 of the Penal Enforcement Code, the period of serving a sentence in the form of restriction of liberty is calculated from the date on which the probation service accepts the court judgment that has entered into legal force for execution.

The period of detention in custody before the court judgment enters into legal force shall be credited toward the term of restriction of liberty at the rate of one day for two days (Part 3-1 of Article 62 of the Criminal Code).

The period of house arrest before the court judgment enters into legal force shall be credited toward the term of restriction of liberty at the rate of two days for one day (Part 4 of Article 62 of the Criminal Code).

Labor during the execution of a sentence in the form of restriction of liberty serves as the principal means of educating convicted persons. Thus, convicted persons sentenced to restriction of liberty who do not have a permanent place of employment and are not engaged in studies are subject to compulsory labor. Part 2 of Article 63 of the Penal Enforcement Code establishes that the involvement of convicted persons sentenced to restriction of liberty in compulsory labor is organized by local executive bodies in accordance with Articles 57–59 of the Penal Enforcement Code.

Local executive bodies, public associations and other organizations provide social and legal assistance to persons sentenced to restriction of liberty on the basis of the Rules for Providing Social and Legal Assistance to Persons Registered with the Probation Service, in accordance with an individual program developed by the probation service (Part 3 of Article 63 of the Penal Enforcement Code).

Convicted persons who have a permanent place of employment or are engaged in studies, minors, 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 and older, men aged sixty-three and older, persons with Group I and Group II disabilities, as well as convicted persons whose punishment has been replaced with restriction of liberty for a period of less than six months, shall not be involved in compulsory labor.

Probation supervision is established in respect of persons sentenced to restriction of liberty and is carried out by an authorized state body. Supervision consists of monitoring the conduct of convicted persons and their compliance with the restrictions established by the court. In exercising supervision, the probation service, where necessary, is authorized to apply the measures of influence established by law.

In accordance with Subparagraph 9) of Article 3 of the Penal Enforcement Code, probation supervision shall mean the activities of authorized bodies aimed at monitoring the performance by persons registered with such bodies of the obligations imposed on them by law and by the court.

As follows from Part 2 of Article 44 of the Criminal Code, the court may impose the following obligations on a convicted person: not to change their permanent place of residence, place of employment or place of study without notifying the authorized state body exercising supervision over the conduct of the convicted person; not to visit certain places; to undergo a course of treatment for alcoholism, drug addiction, substance abuse and sexually transmitted diseases; to provide material support to their family; and to perform other obligations that contribute to the rehabilitation of the convicted person and the prevention of new criminal offenses.

The prohibition on involving the above-mentioned categories of persons in compulsory labor is based on the principles of justice and humanism, which require consideration of the social, age-related and physiological characteristics of different categories of persons in criminal law in order to ensure a more complete and effective fulfillment of the objectives pursued by criminal punishment.

A convicted person whose unserved portion of imprisonment has been replaced with restriction of liberty shall be released from custody and shall proceed independently to the place where the sentence is to be served, at the expense of budgetary funds. The administration of the institution shall provide the convicted person with an order to travel to the place where the sentence is to be served, indicating the route and the time of arrival at the probation service for registration, and shall also forward materials describing the convicted person to the probation service (Article 65 of the Penal Enforcement Code).

Persons serving a sentence in the form of restriction of liberty are subject to the following obligations established by penal enforcement legislation:

• to fulfill the obligations imposed by the court;
• to comply with the requirements of the probation service;
• not to visit places designated by the court upon the recommendation of the probation service;
• not to change their place of residence, place of employment or place of study without notifying the probation service;
• not to leave the administrative-territorial unit without notifying the probation service;
• to appear at the probation service on the designated days for registration and the conduct of educational work with them, except in cases of failure to appear for valid reasons;
• to carry an identity document.

Convicted persons serving a sentence in the form of restriction of liberty are entitled to study at educational institutions located within the administrative-territorial unit where the sentence is being served. With the consent of the probation service, a convicted person is entitled to study at educational institutions located outside the administrative-territorial unit, subject to mandatory registration with the probation service at the location of the educational institution (Part 2 of Article 66 of the Penal Enforcement Code). In accordance with Part 1 of Article 69 of the Penal Enforcement Code, probation supervision over convicted persons serving a sentence in the form of restriction of liberty is carried out by the probation service at their place of residence. To ensure proper supervision and obtain information about the whereabouts of convicted persons, the probation service is entitled to use electronic monitoring devices, the list of which was approved by Resolution No. 1180 of the Government of the Republic of Kazakhstan dated November 7, 2014.

In accordance with this Resolution, "Electronic monitoring devices used by the probation service of the penal enforcement system to ensure proper supervision and obtain information about the whereabouts of ... persons sentenced to restriction of liberty ... include personal monitoring devices, technical equipment and their monitoring devices."

Personal monitoring devices:

• radio-frequency electronic bracelet (an electronic device designed to be worn on the body for the purpose of remote identification and tracking of a person's location, equipped with a built-in system for monitoring unauthorized removal and opening of the casing);
• personal tracker (an electronic device in the form of a bracelet designed to be worn on the body for the purpose of remote identification and tracking of a person's location using signals from the GLONASS/GPS global navigation satellite system, equipped with a built-in system for monitoring unauthorized removal and opening of the casing);
• stationary monitoring device (an electronic device that ensures continuous, round-the-clock reception and identification of radio-frequency electronic bracelet signals in order to monitor a person's presence within a room or designated territory, as well as to issue notifications about attempts to remove or damage the radio-frequency electronic bracelet and other violations);
• mobile monitoring device (an electronic device designed to be worn together with a radio-frequency electronic bracelet when a person is outside a location equipped with a stationary monitoring device, for tracking the person's location using signals from the GLONASS/GPS global navigation satellite system, as well as for issuing notifications about attempts to remove or damage the radio-frequency electronic bracelet and other violations);
• stationary signal transmission device (an electronic device designed to generate a radio signal and ensure the operation of a personal tracker in premises where signals from the GLONASS/GPS global navigation satellite system are unavailable);
• stationary audiovisual monitoring device (an electronic device designed for automatic visual and voice identification of a registered person);
• stationary photoelectrochemical monitoring device (an electronic device designed for automatic visual monitoring and determination of the amount of alcohol in the blood based on the exhaled breath of an identified registered person).

Technical equipment and monitoring devices:

• monitoring server (a hardware and software system designed to ensure the operation of the remote identification system, as well as the receipt, processing, storage and transmission of information);
• audiovisual monitoring server (a hardware and software system designed to ensure the functioning of the system for visual and voice identification, recording, processing, storage and transmission of information);
• automated operator workstation (a hardware and software information system designed to process and display information regarding a person's compliance with the prescribed restrictions);
• mobile monitoring console (a set of portable devices that ensures the reception and identification of signals from radio-frequency electronic bracelets and personal trackers, as well as the processing and display of information regarding compliance by a registered person with the prescribed restrictions).

According to Part 2 of Article 69 of the Penal Enforcement Code, when registering a person sentenced to restriction of liberty who is subject to probation supervision, the probation service:

• establishes the convicted person's place of residence, state of health, level of education and employment status, as well as other information necessary to determine the scope of social and legal assistance to be provided to that person;
• explains to the convicted person the procedure for providing social and legal assistance, the implementation and termination of probation supervision in respect of that person, and also establishes the days on which the person must appear at the probation service for registration;
• explains the procedure for fulfilling the obligations imposed by the court and performing compulsory labor, as well as the procedure for holding the person liable for failure to fulfill such obligations and for violating the conditions and procedure of probation supervision.

In the event of malicious evasion of serving restriction of liberty, the unserved portion of the sentence shall be replaced by imprisonment at the rate of one day of imprisonment for each day of restriction of liberty.

According to Part 1 of Article 67 of the Penal Enforcement Code, violations of the procedure and conditions for serving a sentence in the form of restriction of liberty include:

• failure to fulfill the obligations specified in Part 1 of Article 66 of the Penal Enforcement Code;
• intentional damage to (destruction of) electronic monitoring devices;
• commission of administrative offenses for which an administrative penalty has been imposed on the convicted person, which infringe upon personal rights, the rights of minors, family and domestic relations, public order and morality.

In accordance with Part 2 of Article 67 of the Penal Enforcement Code, the following constitute malicious violations of the procedure for serving a sentence in the form of restriction of liberty:

• repeated commission within one year of the violations specified in Part 1 of Article 67 of the Penal Enforcement Code;
• departure outside the Republic of Kazakhstan;
• commission by the convicted person of a criminal offense, including a repeated crime, where pre-trial proceedings have been terminated on the grounds provided for in Part 1 of Article 35, Parts 1 and 3 of Article 68, and Parts 2 and 4 of Article 78 of the Criminal Code;
• refusal to comply with the lawful demands of a probation service employee, as well as insulting or threatening to use violence against such employee;
• absconding from probation supervision;
• evasion of compulsory labor without valid reasons specified in Subparagraph 1) of Part 3 of Article 60 of the Penal Enforcement Code.

A convicted person shall be deemed to be absconding from probation supervision if their whereabouts have not been established for more than fifteen days from the date on which they failed to appear at the probation service for registration (Part 3 of Article 67 of the Penal Enforcement Code).

For violations of the procedure and conditions for serving a sentence in the form of restriction of liberty, the convicted person shall be subject to a disciplinary sanction in the form of a written warning that restriction of liberty may be replaced with imprisonment (Part 1 of Article 68 of the Penal Enforcement Code).

In respect of a convicted person who maliciously violates the procedure for serving the sentence, the probation service shall submit materials to the court for consideration of the issue of replacing restriction of liberty with imprisonment (Part 2 of Article 68 of the Penal Enforcement Code).

When a punishment more lenient than that prescribed for the given 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 (Article 73 of the Criminal Code), the period of restriction of liberty may be imposed below the minimum limit established by the commented Article.

Commentary of 2021 on the Criminal Code of the Republic of Kazakhstan by Isidor Shamilovich Borchashvili, Honored Figure of Kazakhstan, Doctor of Law, Professor, Academician of the National Academy of Natural Sciences of Kazakhstan, 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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