Commentary on Article 45 of the Criminal Code of the Republic of Kazakhstan. Arrest

1. Arrest consists of keeping a convicted person in conditions of strict isolation from society for the entire term of the sentence imposed.

2. Arrest is established for a period of ten to fifty days. The period of detention shall be included in the term of arrest.

3. Arrest shall not be imposed on minors, pregnant women, women with young children, men raising young children alone, women aged fifty-eight years and older, men aged sixty-three years and older, or persons with disabilities of the first or second group.

4. Military personnel shall serve arrest in a guardhouse.

5. When a sentence is replaced, the term of arrest may be below the minimum limit established by this Article.

Arrest is the principal and most severe type of punishment imposed for criminal misdemeanors when it is expressly provided for in the sanction of an article of the Special Part of the Criminal Code of the Republic of Kazakhstan. Arrest consists of keeping a convicted person in conditions of strict isolation from society for a period of ten to fifty days. It should be noted that, prior to the introduction of amendments and additions to the commented Article by the Law dated July 12, 2018, arrest was established for a period of thirty to ninety days.

The essence of the punitive element of arrest lies in the act of threatening isolation, based on the convicted person's short-term confinement under conditions of strict isolation. Strict isolation from society means that the convicted person is deprived of the constitutional right to move freely, choose their place of residence and stay, as well as leave the territory of the Republic of Kazakhstan (Article 21 of the Constitution of the Republic of Kazakhstan). In addition, strict isolation also entails personal restrictions (daily routine, watching television programs).

The isolation of a convicted person is defined as placing that person in conditions under which they are deprived of ties and contacts with their former environment or society as a whole.

It should be noted that throughout the civilized world, arrest is regarded as a highly promising type of punishment. In the legislator's opinion, arrest is capable of exerting a strong psychological impact as a criminal punishment measure on certain categories of persons sentenced to this type of punishment. The very fact of staying in special detention facilities and isolated sections of pre-trial detention centers may cause severe stress in persons who have not previously been isolated from society and may have a positive effect on achieving the purpose of punishment.

Arrest may be imposed by a court as the principal type of punishment even when it is not provided for in the sanction of an article of the Special Part of the Criminal Code of the Republic of Kazakhstan:

in the event of replacement of a fine due to non-payment within the prescribed time limits, at the rate of one day of arrest for every four unpaid monthly calculation indices (subparagraph 1) of paragraph 6 of Article 41 of the Criminal Code);

in the event of other circumstances arising that prevent the execution of corrective labor, the remaining part of the sentence shall be replaced by arrest at the rate of one day of arrest for every four monthly calculation indices that have not been recovered (subparagraph 1) of paragraph 5 of Article 42 of the Criminal Code);

in the event of evasion from community service, at the rate of one day of arrest for every four hours of community service not performed (subparagraph 1) of paragraph 2-1 of Article 43 of the Criminal Code).

The terms of arrest are calculated in days (paragraph 1 of Article 62 of the Criminal Code). The time during which the convicted person was held in custody before the judgment entered into legal force shall be credited toward the term of punishment at the rate of one day in custody for one day of arrest (subparagraph 1) of paragraph 3-1 of Article 62 of the Criminal Code). The time spent under house arrest before the judgment entered into legal force shall be credited toward the term of punishment at the rate of two days of house arrest for one day of arrest (paragraph 4 of Article 62 of the Criminal Code).

According to paragraph 4 of Article 24 of the Penal Enforcement Code, punishment in the form of arrest is enforced by internal affairs bodies and military police bodies.

The procedure and conditions for the enforcement of punishment in the form of arrest are established in Chapter 15 of the Penal Enforcement Code of the Republic of Kazakhstan (Articles 83–87).

According to paragraph 1 of Article 83 of the Penal Enforcement Code, convicted persons serve punishment in the form of arrest at the place of conviction in special detention facilities and isolated sections of pre-trial detention centers.

Military personnel serve punishment in the form of arrest in a guardhouse. The internal regulations and procedure for keeping convicted persons in a guardhouse are determined by the authorized bodies in the fields of penal enforcement activities, national security, and defense of the Republic of Kazakhstan (paragraph 2 of Article 81 of the Penal Enforcement Code).

Persons sentenced to arrest are held in cells under conditions of strict isolation (paragraph 1 of Article 85 of the Penal Enforcement Code).

Men and women, as well as persons who have previously served sentences in correctional institutions and have a criminal record, are held separately.

Convicted persons suffering from various infectious diseases are held separately from one another and apart from healthy convicted persons.

The following convicted persons are held in isolation from other convicted persons: former employees of courts, law enforcement and special state bodies, and persons authorized to exercise control and supervision over the conduct of convicted persons.

The specific features of serving sentences under cell-based detention conditions are regulated by the provisions of Chapter 23 of the Penal Enforcement Code (Articles 146–149).

If a convicted person is sent for hospitalization to medical institutions of healthcare organizations, an escort is assigned to ensure their security.

In accordance with paragraph 2 of Article 86 of the Penal Enforcement Code, while serving punishment in the form of arrest, convicted persons have the right: 1) to receive and send letters and telegrams at their own expense once a month; 2) to receive money transfers; 3) to spend monthly, on the purchase of food products and essential items, funds available in the cash control accounts for the temporary placement of money, in an amount of up to one monthly calculation index; 4) to receive parcels, packages, and printed matter parcels containing essential items and seasonal clothing once a month. Sick convicted persons and persons with disabilities have the right to receive parcels and packages containing medicinal products and medical devices in the quantity and assortment determined by a medical opinion; 5) to meet with an attorney without restrictions on the number or duration of such meetings and under conditions ensuring their confidentiality; 6) to take a daily walk lasting at least one and a half hours; 7) to have a telephone conversation with their spouse or close relatives at their own expense in the event of the death or serious illness of a spouse or close relative that threatens the life of the sick person; a natural disaster that has caused significant material damage to their family; and other exceptional personal circumstances; 8) to take short-term leave for a period not exceeding seven days, excluding the time required for travel in both directions (not exceeding five days), in connection with the death or serious illness of a spouse or close relative that threatens the life of the sick person, or a natural disaster that has caused significant material damage to their family.

The procedure for enforcing punishment in the form of arrest in respect of convicted military personnel differs from the procedure for enforcing arrest in respect of other persons, which is обусловлено by their military service in the Armed Forces of the Republic of Kazakhstan. The main distinctions include serving arrest in guardhouses, as well as a higher degree of differentiation in the separate confinement of military personnel sentenced to arrest, which is обусловлено by the specific nature of military relations.

According to paragraph 207 of the Internal Service Regulations of the Armed Forces, other troops and military formations of the Republic of Kazakhstan, approved by Decree of the President of the Republic of Kazakhstan dated July 5, 2007, a guardhouse is a facility equipped at military police bodies for keeping military personnel under arrest.

The period of serving punishment in the form of arrest shall not be included in the total period of military service or length of service for the purpose of awarding the next military rank (paragraph 1 of Article 87 of the Penal Enforcement Code). Furthermore, during the period of serving the sentence, the convicted person may not be nominated for the next military rank, appointed to a higher position, transferred to a new place of service, or dismissed from military service, except in cases where the person is declared unfit for service due to health reasons (paragraph 2 of Article 87 of the Penal Enforcement Code). Convicted military personnel shall not receive monetary allowances during the period of serving punishment in the form of arrest (paragraph 3 of Article 87 of the Penal Enforcement Code).

Considering that persons sentenced to arrest are held under conditions of strict isolation, the legislator, guided by the principle of humanism, has provided for the possibility of not applying arrest when imposing this type of punishment on minors, pregnant women, women with young children, men raising young children alone, women aged fifty-eight years and older, men aged sixty-three years and older, and persons with disabilities of the first or second group (paragraph 3 of Article 45 of the Criminal Code).

When a sentence is replaced, the term of arrest may be below the minimum limit established by the commented Article (paragraph 5 of Article 45 of the Criminal Code).

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 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.

Constitution Law Code Regulatory Decree Order Decision Resolution Attorney Almaty Lawyer Legal services Legal Consultation Civil Criminal Administrative cases and disputes Defense Arbitration Legal Company of Kazakhstan Law Office Court Cases Declaration Decree Order Resolution Decision Report Conclusion Application Conclusion Convention Contract Memorandum Methodology Norms Note Rules Program Charter Charter Article Commentary Resolution Regulations Protocol Draft Program Rules Addresses