Commentary on Article 46. Deprivation of Liberty of the Criminal Code of the Republic of Kazakhstan

1. Deprivation of liberty consists in isolating a convicted person from society by placing them in a penal enforcement institution.

2. Persons sentenced to deprivation of liberty who have not reached the age of eighteen at the time the judgment is pronounced shall be placed in medium-security penal enforcement institutions for the detention of minors.

3. Deprivation of liberty for the commission of crimes provided for by this Code shall be established for a period of six months to fifteen years, and for especially grave crimes — up to twenty years or for life. For crimes committed through negligence, the term of deprivation of liberty may not exceed ten years. Where a fine, corrective labor, involvement in community service, or restriction of liberty is replaced by deprivation of liberty, it may be imposed for a term of less than six months. In the event of partial or complete aggregation of terms of deprivation of liberty when imposing sentences for multiple crimes and in the cases provided for in Part Five of Article 47, Part Five of Article 71 and Part Five of Article 77 of this Code, the maximum term of deprivation of liberty may not exceed twenty-five years, and in the case of cumulative sentences — thirty years.

4. Life imprisonment may be established for the commission of especially grave crimes, as well as as an alternative to the death penalty. Life imprisonment shall not be imposed on persons who committed a crime before reaching the age of eighteen, on women, or on men aged sixty-three or older. By way of pardon, life imprisonment may be replaced with deprivation of liberty for a fixed term.

5. Deprivation of liberty shall be served:

1) in minimum-security penal enforcement institutions: by persons convicted of crimes committed through negligence; by persons convicted of non-violent crimes provided for in Chapters 7, 8, 9, 12 and 13 of this Code;

by persons convicted of crimes provided for in Chapter 15 of this Code, provided that they have fully compensated for the damage caused by the crime; by persons convicted for the first time of an intentional crime for which a sentence of deprivation of liberty for a term of up to two years has been imposed;

The provisions of this paragraph shall not apply to persons sentenced to deprivation of liberty for the commission of crimes provided for in Parts 1-1, Two, Three and Four of Article 366, Parts Two, Three and Four of Article 367, and Part Two of Article 368 of this Code;

2) in medium-security penal enforcement institutions: by persons sentenced to deprivation of liberty for a term exceeding two years for the commission of intentional crimes of minor or medium gravity or grave crimes, who have not previously served a sentence of deprivation of liberty; by women who have committed an especially grave crime, as well as in cases of recidivism; by persons whose fines, corrective labor, involvement in community service, or restriction of liberty have been replaced with deprivation of liberty; by persons sentenced to deprivation of liberty for the commission of crimes provided for in Parts 1-1, Two and Three of Article 366, Parts Two and Three of Article 367, and Part Two of Article 368 of this Code;

Deprivation of liberty in medium-security penal enforcement institutions shall not be assigned to persons sentenced to deprivation of liberty for crimes against the sexual inviolability of minors, except for persons who committed the crime while under the age of eighteen;

3) in maximum-security penal enforcement institutions: by men sentenced for the first time to deprivation of liberty for the commission of especially grave crimes; by persons sentenced to deprivation of liberty for crimes against the sexual inviolability of minors, except for persons who committed the crime while under the age of eighteen, as well as men in cases of dangerous recidivism or those sentenced to life imprisonment; by persons sentenced to deprivation of liberty who have previously served a sentence of deprivation of liberty for the commission of an intentional crime, except for persons convicted of non-violent crimes provided for in Chapters 7, 8, 9, 12 and 13 of this Code, as well as persons convicted of crimes provided for in Chapter 15 of this Code, provided that they have fully compensated for the damage caused by the crime; by men convicted in cases of recidivism; by women — in cases of dangerous recidivism;

4) in cases of dangerous recidivism, as well as for persons sentenced to life imprisonment — in maximum-security penal enforcement institutions.

In the case of cumulative sentences, the stricter type of institution established by one of the judgments included in the cumulative sentence shall be determined for serving the sentence of deprivation of liberty.

6. Persons sentenced to deprivation of liberty for a term exceeding five years for the commission of especially grave crimes, as well as in cases of dangerous recidivism, may be assigned to serve part of their sentence, but not more than five years, in full-security penal enforcement institutions.

7. A change in the type of institution assigned by a judgment shall be made by the court in accordance with Article 96 of the Penal Enforcement Code of the Republic of Kazakhstan.

Deprivation of liberty is one of the most severe types of punishment, imposed only for the commission of crimes, and consists in isolating a convicted person from society.

Deprivation of liberty has the strongest impact on a person, particularly on those sentenced to this type of punishment for the first time, contributes to the restoration of social justice and the prevention of new crimes. Being highly repressive in nature, it entails the imposition of certain restrictions on the rights of the guilty person.

First and foremost, this concerns constitutional rights: the right to personal liberty (Article 16 of the Constitution of the Republic of Kazakhstan); the right to privacy, the confidentiality of personal deposits and savings, correspondence, telephone conversations, postal, telegraphic and other communications (Article 18 of the Constitution of the Republic of Kazakhstan); the right to freedom of movement within the territory of the Republic of Kazakhstan and to choose one's place of residence, as well as the right to leave the Republic of Kazakhstan (Article 21 of the Constitution of the Republic of Kazakhstan); the inviolability of the home (Article 25 of the Constitution of the Republic of Kazakhstan); and the right to elect and be elected and to participate in a republican referendum (Article 33 of the Constitution of the Republic of Kazakhstan).

The meaning of the concept of “deprivation of liberty” is disclosed in Part 1 of Article 46 of the Criminal Code, which states that deprivation of liberty consists in isolating a convicted person from society by placing them in a penal enforcement institution.

Thus, deprivation of liberty consists in isolating a convicted person from society, which is ensured by special institutions that enforce punishment in the form of deprivation of liberty. According to Part 9 of Article 24 of the Penal Enforcement Code, sentences in the form of deprivation of liberty are enforced by institutions, as well as by pre-trial detention centers in respect of convicted persons who have been retained or sent there to perform maintenance and support work.

The distinction between different types of institutions is primarily determined by the degree of isolation of the convicted person from society ensured therein. In this regard, one may speak of the regime for serving the sentence.

The term “deprivation of liberty” is also encountered in other branches of Kazakhstan's legislation, for example, in the application of administrative arrest, detention as a preventive measure, or the detention of military personnel in a guardhouse. The difference here is that deprivation of liberty as a type of criminal punishment is imposed by a court on persons guilty of committing a crime. The distinction also lies in the purposes, duration, procedure and conditions for enforcing these measures of coercion.

If the sanction of a criminal law provision provides for other types of punishment alongside deprivation of liberty, the court's decision to impose deprivation of liberty must be justified in the judgment. Thus, the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated June 25, 2015, “On Certain Issues of Imposing Criminal Punishment”, states that “If the sanction of the article of the Criminal Code under which a person has been found guilty provides for alternative types of punishment, courts should consider the possibility of imposing the less severe one, bearing in mind that, in accordance with Part Two of Article 52 of the Criminal Code, a more severe type of punishment shall be imposed only where a less severe type of punishment cannot ensure the achievement of the purposes of punishment. The court's decision must be justified in the judgment” (paragraph 6).

If, in accordance with the provisions of the General Part of the Criminal Code, none of the punishments provided for by the sanction of the relevant article of the Special Part of the Criminal Code may be imposed on a person, the court shall, without referring to Part 4 of Article 55 of the Criminal Code, impose on that person a less severe type of punishment provided for by Article 40 or Article 81 of the Criminal Code. The justification for the decision adopted by the court must be set out in the reasoning part of the judgment, with reference to the relevant provision of the General Part of the Criminal Code establishing the prohibition on applying a particular type of punishment.

The article under consideration provides for deprivation of liberty for a fixed term (“fixed-term”) and for life (“indefinite”). The criminal legislation of Kazakhstan does not permit the imposition of deprivation of liberty for an indefinite term. The court judgment must specify precisely the term of the punishment imposed.

Part 3 of Article 46 of the Criminal Code provides that deprivation of liberty shall be established for a term of six months to fifteen years, and for especially grave crimes — up to twenty years or for life. For crimes committed through negligence, the term of deprivation of liberty may not exceed ten years. Where a fine, corrective labor, involvement in community service, or restriction of liberty is replaced by deprivation of liberty, it may be imposed for a term of less than six months. In the event of partial or complete aggregation of terms of punishment in the form of deprivation of liberty for multiple crimes and in the cases provided for in Part 5 of Article 47 (replacement of the death penalty by way of pardon), Part 5 of Article 71 (if the court does not consider it possible to release a person from criminal liability due to the expiration of the limitation period, the death penalty shall be replaced with life imprisonment, and life imprisonment shall be replaced with deprivation of liberty for a term of twenty-five years) and Part 5 of Article 77 (if the court does not find it possible to apply the limitation period to a person sentenced to death), the maximum term of deprivation of liberty may not exceed twenty-five years, and in the case of cumulative judgments — thirty years.

For juvenile offenders, deprivation of liberty may be imposed for a term not exceeding ten years, and for murder under aggravating circumstances or an act of terrorism, or for a combination of criminal offenses, one of which is murder under aggravating circumstances or an act of terrorism, — twelve years. Deprivation of liberty shall not be imposed on minors who have committed a crime of minor gravity or a crime of medium gravity not involving the causing of death (Part 7 of Article 81 of the Criminal Code).

In accordance with Part 1 of Article 80 of the Criminal Code, minors are persons who, at the time of committing a criminal offense, have reached the age of fourteen but have not reached the age of eighteen.

Persons sentenced to deprivation of liberty who have not reached the age of eighteen at the time the judgment is pronounced shall be placed in medium-security penal enforcement institutions for the detention of minors.

This is also indicated in paragraph 9 of the above-mentioned Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan “On Certain Issues of Imposing Criminal Punishment”, according to which “When considering the issue of imposing punishment on minors, courts must take into account that only those types of criminal punishment specified in Article 81 of the Criminal Code may be applied to them, and the terms and amounts of such punishments may not exceed the limits established by that article. At the same time, the circumstances specified in Articles 82 and 83 of the Criminal Code should also be taken into account, and in each specific case, having regard to the circumstances of the case and the personality of the minor, the possibility of applying compulsory educational measures to them should be considered.

When imposing deprivation of liberty on minors, the term of deprivation of liberty, both for a single criminal offense and for their aggregate, as well as in the case of cumulative judgments, may not exceed ten years. Deprivation of liberty exceeding the specified term may be imposed on minors only for murder committed under aggravating circumstances or an act of terrorism, or for an aggregate of criminal offenses, one of which is murder committed under aggravating circumstances or an act of terrorism. In this case, the term of deprivation of liberty imposed for the aggregate of crimes and cumulative judgments may not exceed twelve years.

If a minor is sentenced to deprivation of liberty taking into account the rules provided for in Parts Two and Three of Article 56 of the Criminal Code, one-half or three-quarters of the term or amount of the most severe type of punishment shall be calculated respectively from ten or twelve years of deprivation of liberty, which may be imposed on a minor for a completed criminal offense. Similar rules for calculating the terms of punishment for a minor must also be taken into account when imposing punishment in accordance with the requirements of Part Two or Three of Article 55 of the Criminal Code”.

As previously noted, a court shall assign a minor sentenced to deprivation of liberty to serve the sentence in medium-security penal enforcement institutions for the detention of minors. Upon reaching adulthood, convicted persons may, with their consent, be retained in the institution until they reach the age of twenty-one. The decision to retain convicted persons who have reached the age of eighteen in the above-mentioned institution shall be made by the court on the basis of a submission by the head of the institution.

A person who committed a criminal offense while a minor and reached the age of majority by the time the judgment is pronounced shall, if sentenced to deprivation of liberty, be assigned a type of penal enforcement institution in accordance with Article 46 of the Criminal Code as a person who has reached the age of majority (paragraph 13 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated June 23, 2006, “On Judicial Practice in Assigning Types of Penal Enforcement Institutions to Persons Sentenced to Deprivation of Liberty”).

According to paragraph 9-1 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan “On Certain Issues of Imposing Criminal Punishment”: “Only the period during which a person was held in custody before the judgment entered into legal force in a criminal case shall be credited towards the term of criminal punishment in accordance with the rules of Part Three of Article 62 of the Criminal Code, including the period of detention of a person suspected of committing a criminal offense under the procedure established by Article 131 of the Criminal Procedure Code. The period during which a person was held in custody after the judgment entered into legal force (in connection with the detention of a convicted person who is wanted and their transfer, replacement of punishment, etc.) shall be credited towards the term of criminal punishment without applying the rules of Part Three of Article 62 of the Criminal Code.

Where a person is conditionally sentenced to deprivation of liberty with the application of Article 63 of the Criminal Code, the period of detention before the judgment enters into legal force shall be credited towards the term of serving the sentence in accordance with the rules of Part Three of Article 62 of the Criminal Code, taking into account the type of penal enforcement institution in which the person would have served the sentence had they been sentenced to actual deprivation of liberty”.

When imposing punishment in the form of deprivation of liberty, the court not only establishes the term of punishment but also determines the date from which it is calculated. The period of detention before the judgment enters into legal force shall be credited towards the term of deprivation of liberty at the rate of one day for one day, while the period of house arrest before the court judgment enters into legal force shall be credited at the rate of two days for one day (Parts 3 and 4 of Article 62 of the Criminal Code).

If compulsory medical measures were applied to a person who developed a mental illness after committing a crime, the time spent receiving treatment shall be credited towards the term of serving the sentence (Part 7 of Article 62 of the Criminal Code).

As a replacement for another type of punishment imposed, deprivation of liberty may be imposed for a term of less than six months in the following cases:

in the event of non-payment of a fine within the prescribed period by a person convicted of a crime of minor or medium gravity — by deprivation of liberty at the rate of one day of deprivation of liberty for every four unpaid monthly calculation indices (subparagraph 2) of Part 6 of Article 41 of the Criminal Code);

for a person convicted of a grave crime — by deprivation of liberty at the rate of one day of deprivation of liberty for every four unpaid monthly calculation indices (subparagraph 3) of Part 6 of Article 41 of the Criminal Code);

for a person sentenced to a multiple fine — by deprivation of liberty within the limits of the sanction of the relevant article of the Special Part of the Criminal Code, taking into account the portion of the fine paid and collected (subparagraph 4) of Part 6 of Article 41 of the Criminal Code).

Where circumstances arise that are not related to the loss of working capacity and prevent the performance of corrective labor, it shall be replaced:

for persons convicted of a crime of minor or medium gravity — by deprivation of liberty at the rate of one day of deprivation of liberty for every four uncollected monthly calculation indices (subparagraph 2) of Part 5 of Article 42 of the Criminal Code);

for persons convicted of a grave crime — by deprivation of liberty at the rate of one day of deprivation of liberty for every four uncollected monthly calculation indices (subparagraph 3) of Part 5 of Article 42 of the Criminal Code).

In the event of evasion from community service, it shall be replaced, for persons convicted of a crime, by deprivation of liberty at the rate of one day of deprivation of liberty for every four unworked hours of community service (subparagraph 2) of Part 2-1 of Article 43 of the Criminal Code).

In the event of malicious evasion from serving restriction of liberty, its unserved term shall be replaced by deprivation of liberty at the rate of one day of deprivation of liberty for one day of restriction of liberty (Part 3 of Article 44 of the Criminal Code).

If the aggregate of criminal offenses includes a grave or especially grave crime, the final punishment shall be imposed by absorbing the less severe punishment into the more severe one or by partial or complete aggregation of punishments. In this case, the final punishment in the form of deprivation of liberty may not exceed twenty years.

If the aggregate of criminal offenses includes at least one especially grave crime for which the Criminal Code of the Republic of Kazakhstan provides for punishment in the form of deprivation of liberty for a term of up to twenty years, the final punishment shall be imposed by partial or complete aggregation of punishments. In this case, the final punishment in the form of deprivation of liberty may not exceed twenty-five years.

If the aggregate of criminal offenses includes at least one especially grave crime for which the Criminal Code of the Republic of Kazakhstan provides for punishment in the form of deprivation of liberty for a term of up to twenty years, as well as a criminal misdemeanor for which a fine has been imposed, the final punishment shall be imposed by absorbing the less severe punishment into the more severe one.

If life imprisonment or the death penalty is imposed for a crime included in the aggregate, the final punishment shall be imposed in the form of life imprisonment or, respectively, the death penalty (Part 4 of Article 58 of the Criminal Code).

In accordance with Part 4 of Article 46 of the Criminal Code, life imprisonment may be established for the commission of especially grave crimes, as well as as an alternative to the death penalty.

In terms of its substance, life imprisonment, just like deprivation of liberty, consists in isolating a convicted person from society. The greater severity of life imprisonment is ensured, firstly, by the absence of a fixed term of punishment and, secondly, by the special conditions under which the sentence is served.

In addition to the limited range of crimes for which life imprisonment may be imposed, the law establishes other rules that further restrict the possibility of applying the punishment under consideration.

Life imprisonment may not be imposed on persons who committed a crime before reaching the age of eighteen; on women; or on men aged sixty-three or older.

This prohibition on imposing life imprisonment on the specified categories of persons is based on the need, arising from the principles of justice and humanism, to take into account the social, age-related and physiological characteristics of different categories of persons in criminal legislation, in order to ensure a fuller and more effective achievement of the objectives pursued by criminal punishment in a state governed by the rule of law.

A person serving life imprisonment imposed by a court may be released on parole.

According to subparagraph 3) of Part 1 of Article 161 of the Penal Enforcement Code, parole is one of the grounds for release from serving a sentence.

In accordance with Part 6 of Article 72 of the Criminal Code, parole while serving life imprisonment imposed by a court may be applied:

if the court finds that the convicted person no longer needs to serve this punishment and has actually served at least twenty-five years of deprivation of liberty;

if a person serving life imprisonment imposed by a court has fulfilled all the conditions of a procedural agreement, that person may be released on parole after actually serving at least fifteen years of deprivation of liberty.

In accordance with Part 1 of Article 162 of the Penal Enforcement Code, upon the convicted person serving the portion of the sentence established by law, the institution or body enforcing the sentence is obliged, within five days, to notify the convicted person in writing of the commencement of their right to file a petition with the court to consider the issue of parole.

According to paragraph 37) of Article 7 of the Criminal Procedure Code, a procedural agreement is an agreement concluded between a prosecutor and a suspect, accused person or defendant at any stage of the criminal proceedings, or with a convicted person, in the manner and on the grounds provided for by the Criminal Procedure Code of the Republic of Kazakhstan.

A procedural agreement is concluded in the form of a plea agreement and in the form of a cooperation agreement (Part 1 of Article 612 of the Criminal Procedure Code).

A plea agreement shall not be permitted in cases involving especially grave crimes (subparagraph 1) of Part 1 of Article 612 of the Criminal Procedure Code).

A cooperation agreement is concluded for all categories of crimes where assistance is provided in the detection and investigation of crimes committed by a criminal group, especially grave crimes committed by other persons, as well as extremist and terrorist crimes (subparagraph 2) of Part 1 of Article 612 of the Criminal Procedure Code).

Parole shall not apply to a person whose death penalty has been replaced with deprivation of liberty by way of pardon; a person convicted of a terrorist or extremist crime that resulted in the death of people or was associated with the commission of an especially grave crime; or a person convicted of a crime against the sexual inviolability of minors (Part 8 of Article 72 of the Criminal Code).

The specified restriction shall not apply to minors who have committed a crime against the sexual inviolability of a minor aged between fourteen and eighteen.

The Criminal Code clearly and differentially establishes the types of penal enforcement institutions in which convicted persons serve their sentences of deprivation of liberty.

When imposing deprivation of liberty, the court, in the operative part of the judgment, in addition to the term of deprivation of liberty, specifies the place where the sentence is to be served — the type of penal enforcement institution, the regime, and the commencement of calculation of the term of service. Institutions are divided into: 1) minimum-security institutions; 2) medium-security institutions; 3) medium-security institutions for the detention of minors; 4) maximum-security institutions; 5) maximum-security institutions; 6) full-security institutions; 7) mixed-security institutions.

According to Part 2 of Article 89 of the Penal Enforcement Code, mixed-security institutions include: 1) institutions for the detention of convicted persons under different types of regimes; 2) pre-trial detention centers used for the detention of persons sentenced to arrest, deprivation of liberty, or persons sentenced to deprivation of liberty who have been retained or sent there to perform maintenance and support work, or who have arrived from institutions in accordance with subparagraph 4) of Part 4 of Article 88 of the Penal Enforcement Code.

The existence of different types of penal enforcement institutions is due to the need to keep convicted persons separately depending on their personality, the gravity of the crimes they have committed, and the number of convictions, in order to prevent the negative influence of previously convicted persons on those sentenced to deprivation of liberty for the first time, and the negative influence of adult convicted persons on minors.

The differing degrees of public danger posed by convicted persons also necessitate the application of different means of influence to them, which is possible only under different regimes in institutions enforcing punishment. The correct determination of the type of penal enforcement institution is important for achieving the objectives of punishment and ensures the individualization of the enforcement of punishment, taking into account the gravity of the crime committed, the personality of the offender, their age and gender. It should be borne in mind that the law excludes the possibility of assigning a particular type of penal enforcement institution at the court's discretion.

The laws of the Republic of Kazakhstan dated April 18, 2017, July 12, 2018, and December 30, 2020 introduced significant amendments and additions to the grounds for assigning the type of institution enforcing punishment and to the terms of deprivation of liberty. The types of institutions for serving a sentence in the form of deprivation of liberty are assigned in accordance with Part 5 of Article 46 of the Criminal Code.

In minimum-security penal enforcement institutions: persons convicted of crimes committed through negligence; persons convicted of non-violent crimes provided for in the Chapters of the Criminal Code of the Republic of Kazakhstan: Chapter 7 “Criminal Offenses in the Sphere of Informatization and Communications”, Chapter 8 “Criminal Offenses in the Sphere of Economic Activity”, Chapter 9 “Criminal Offenses against the Interests of Service in Commercial and Other Organizations”, Chapter 12 “Medical Criminal Offenses” and Chapter 13 “Environmental Criminal Offenses”; persons convicted of crimes provided for in Chapter 15 “Corruption and Other Criminal Offenses against the Interests of Public Service and Public Administration”, provided that they have fully compensated for the damage caused by the crime; persons convicted for the first time of an intentional crime for which a sentence of deprivation of liberty for a term of up to two years has been imposed. At the same time, it should be borne in mind that for crimes committed through negligence, both men and women are sent to minimum-security penal enforcement institutions, regardless of the term of punishment, previous convictions, or whether they have served sentences of deprivation of liberty for previously committed crimes.

According to the Law of the Republic of Kazakhstan dated December 19, 2020, “On Amendments and Additions to Certain Legislative Acts of the Republic of Kazakhstan on Issues of Strengthening the Protection of Citizens' Rights in Criminal Proceedings and Combating Corruption”: “The provisions of this paragraph (subparagraph 1) of Part 5 of Article 46 of the Criminal Code — italicized by the author, I.B.) shall not apply to persons sentenced to deprivation of liberty for the commission of crimes provided for in Parts 1-1, Two, Three and Four of Article 366, Parts Two, Three and Four of Article 367, and Part Two of Article 368 of the Criminal Code”.

Paragraph 2 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan “On Judicial Practice in Assigning Types of Penal Enforcement Institutions to Persons Sentenced to Deprivation of Liberty” states that the following persons (men and women) shall be sent to minimum-security penal enforcement institutions:

for crimes committed through negligence, regardless of the term of punishment;

for non-violent crimes provided for in Chapters 7, 8, 9, 12 and 13 of the Criminal Code;

for crimes provided for in Chapter 15 of the Criminal Code, provided that they have fully compensated for the damage caused by the crime.

It should be noted here that the Law of the Republic of Kazakhstan dated December 19, 2020 prohibits the assignment of minimum-security penal enforcement institutions for the commission of crimes provided for in Parts 1-1, 2, 3 and 4 of Article 366, Parts 2, 3 and 4 of Article 367, and Part 2 of Article 368 of the Criminal Code. The Supreme Court should reflect these prohibitions in its regulatory resolution;

persons convicted for the first time of an intentional crime for which a sentence of deprivation of liberty for a term of up to two years inclusive has been imposed.

By virtue of the requirements of Part 3 of Article 19 of the Criminal Procedure Code, persons who have previously been convicted but have not served a sentence of deprivation of liberty and who are convicted of committing a new intentional crime for which deprivation of liberty for a term of up to two years inclusive has been imposed shall serve their sentence in minimum-security penal enforcement institutions.

Persons convicted for the first time to deprivation of liberty also include those who were previously sentenced to deprivation of liberty but whose convictions have been expunged or removed in accordance with the procedure established by law, as well as persons who have unexpunged or unremoved convictions for acts that are no longer recognized as criminal offenses under a new criminal law having retroactive effect.

In medium-security penal enforcement institutions: persons sentenced to deprivation of liberty for a term exceeding two years for the commission of intentional crimes of minor or medium gravity or grave crimes, who have not previously served a sentence of deprivation of liberty; women who have committed an especially grave crime, as well as in cases of recidivism; persons whose fines, corrective labor, involvement in community service, or restriction of liberty have been replaced with deprivation of liberty; persons sentenced to deprivation of liberty for the commission of crimes provided for in Parts 1-1, 2 and 3 of Article 366, Parts 2 and 3 of Article 367, and Part 2 of Article 368 of the Criminal Code.

Deprivation of liberty in medium-security penal enforcement institutions shall not be assigned to persons sentenced to deprivation of liberty for crimes against the sexual inviolability of minors, except for persons who committed the crime while under the age of eighteen.

According to paragraph 3 of the above-mentioned Regulatory Resolution of the Supreme Court: “Women sentenced to deprivation of liberty for a term exceeding two years for the commission of intentional crimes, regardless of the category of the crimes, as well as in cases of recidivism, provided that they have not previously served an actual sentence of deprivation of liberty, shall serve their sentences in medium-security penal enforcement institutions”.

It should be noted that the legislator allows contradictions between subparagraph 2) of Part 5 of the article under consideration and Part 2 of Article 11 of the Criminal Code. The essence of the contradiction is that the legislator has provided, in subparagraph 2) of Part 5 of the article under consideration, as one of the grounds for assigning a medium-security penal enforcement institution, the imposition of deprivation of liberty for a term exceeding two years on persons convicted of an intentional crime of minor gravity. However, according to Part 2 of Article 11 of the Criminal Code, the maximum punishment for an intentional crime of minor gravity is no more than two years. Consequently, the legislator should eliminate this contradiction.

It is appropriate here to cite the provisions contained in Articles 55 and 81 of the Criminal Code. Thus, according to subparagraph 1) of Part 1 of Article 55 of the Criminal Code, if the article or part of an article of the Special Part of the Criminal Code under which a person has been found guilty provides for a principal type of punishment less severe than deprivation of liberty, deprivation of liberty shall not be imposed when sentencing a person for a crime of minor or medium gravity if that person has voluntarily compensated for the property damage, made amends for the moral and other harm caused by the crime.

According to Part 7 of Article 81 of the Criminal Code, deprivation of liberty shall not be imposed on minors who have committed a crime of minor gravity or a crime of medium gravity not involving the causing of death.

As can be seen from the foregoing, minors are in a more disadvantageous position. The legislator has something to think about.

In maximum-security penal enforcement institutions: men sentenced for the first time to deprivation of liberty for the commission of especially grave crimes; persons sentenced to deprivation of liberty for crimes against the sexual inviolability of minors, except for persons who committed the crime while under the age of eighteen, as well as men in cases of dangerous recidivism or those sentenced to life imprisonment; persons sentenced to deprivation of liberty who have previously served a sentence of deprivation of liberty for the commission of an intentional crime, except for persons convicted of non-violent crimes provided for in Chapters 7, 8, 9, 12 and 13 of the Criminal Code, as well as persons convicted of crimes provided for in Chapter 15 of the Criminal Code, provided that they have fully compensated for the damage caused by the crime; men convicted in cases of recidivism; women — in cases of dangerous recidivism.

“Persons who have previously served a sentence in the form of deprivation of liberty shall be understood to mean,” as stated in paragraph 6 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan “On Judicial Practice in Assigning Types of Penal Enforcement Institutions to Persons Sentenced to Deprivation of Liberty”, “persons who were previously sentenced by a court judgment that entered into legal force to punishment in the form of deprivation of liberty and actually served that punishment in penal enforcement institutions, provided that the conviction had not been removed or expunged in accordance with the procedure established by law at the time of committing the new crime.

The following shall also be classified as persons who have previously served a sentence in the form of deprivation of liberty:

persons conditionally sentenced to deprivation of liberty (Article 40 of the Criminal Code of the Kazakh SSR (hereinafter, the Criminal Code of the Kazakh SSR), Article 63 of the Criminal Code), who, on the grounds provided for in Parts Seven, Eight and Nine of Article 40 of the Criminal Code of the Kazakh SSR, and Parts Three, Four and Five of Article 60 of the Criminal Code, were sent to serve their sentences in penal enforcement institutions;

persons sentenced to deprivation of liberty with a deferment of execution of the judgment (Article 41-1 of the Criminal Code of the Kazakh SSR, Article 74 of the Criminal Code), who, on the grounds provided for in Parts Five and Seven of Article 41-1 of the Criminal Code of the Kazakh SSR, and Parts Two, Three and Four of Article 74 of the Criminal Code, were sent to serve their sentences in penal enforcement institutions;

persons conditionally sentenced to deprivation of liberty with compulsory involvement in labor (Article 23-2 of the Criminal Code of the Kazakh SSR), who, on the grounds provided for in Part Five of Article 23-2 of the Criminal Code of the Kazakh SSR, were sent to serve their sentences in penal enforcement institutions;

persons sentenced to deprivation of liberty who served this punishment under judgments delivered by courts of the former USSR and the union republics forming part thereof (in respect of convictions dating from before December 8, 1991);

persons sentenced to deprivation of liberty under judgments of courts of another state who, due to their subsequent transfer to serve their sentences, were held in penal enforcement institutions of the Republic of Kazakhstan in accordance with a court decision accepting the foreign state's judgment for enforcement, in cases provided for by international treaties of the Republic of Kazakhstan.

Persons conditionally sentenced under Article 63 of the Criminal Code, as well as persons in respect of whom a deferment of execution of punishment was applied under Article 74 of the Criminal Code, if they did not actually serve deprivation of liberty in penal enforcement institutions, shall not be classified as persons who have previously served deprivation of liberty”.

For the purposes of subparagraph 3) of Part 5 of Article 46 of the Criminal Code, persons who have previously served deprivation of liberty shall be understood to mean persons who were previously sentenced by a court judgment that entered into legal force to deprivation of liberty for the commission of an intentional crime and served their sentences in penal enforcement institutions, provided that the conviction had not been removed or expunged in accordance with the procedure established by law at the time of committing the new crime. This rule also applies to persons sentenced to deprivation of liberty for the commission of an intentional crime while they were minors.

In accordance with paragraph 7 of the above-mentioned Regulatory Resolution: “Based on the priority of international treaties enshrined in paragraph 3 of Article 4 of the Constitution of the Republic of Kazakhstan, persons sentenced under judgments of another state may be recognized as having previously served a sentence in the form of deprivation of liberty, provided that the reasons for the decision adopted are stated in the judgment”. The possibility of recognizing judgments of other countries is provided for by the Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters, concluded in Minsk on January 22, 1993, and the Protocol thereto dated March 28, 1997 (in respect of convictions dating from after September 17, 1999), and the Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters, concluded in Chisinau on October 7, 2002 (in respect of convictions dating from after April 27, 2004).

The following persons may not be regarded as having previously served a sentence in the form of deprivation of liberty: persons whose punishment imposed by a court judgment (fine, corrective labor, involvement in community service, restriction of liberty) was replaced, on the grounds provided for in subparagraphs 2) and 3) of Part 6 of Article 41, subparagraphs 2) and 3) of Part 5 of Article 42, subparagraph 2) of Part 2-1 of Article 43, and Part 3 of Article 44 of the Criminal Code, with deprivation of liberty. The following persons may also not be regarded as having previously served a sentence in the form of deprivation of liberty:

persons who were held in places of deprivation of liberty under a court judgment before the case was considered under cassation proceedings, if that judicial instance annulled the judgment and terminated the case, or amended it by imposing a punishment not involving deprivation of liberty, or applied conditional sentencing to deprivation of liberty or deferred execution of the judgment;

persons who were sentenced to deprivation of liberty but did not actually serve the punishment and were not held in places of deprivation of liberty due to the deferment of punishment granted to pregnant women, women with young children, and men raising young children alone (Article 74 of the Criminal Code); release from punishment due to illness (Article 75 of the Criminal Code); due to a combination of difficult circumstances (Article 76 of the Criminal Code); due to the failure to enforce the judgment upon expiration of the limitation period for the enforcement of a conviction (Article 77 of the Criminal Code); or due to the application of an act of amnesty or release from serving a sentence by way of pardon (Article 78 of the Criminal Code);

persons sentenced to deprivation of liberty within the period of their detention as a preventive measure, since they did not serve the punishment in penal enforcement institutions;

persons serving a sentence of deprivation of liberty who are convicted of criminal offenses committed before the delivery of the judgment under which they are serving a sentence of deprivation of liberty for the first time;

persons sentenced to deprivation of liberty who served their sentences in places of deprivation of liberty for acts whose criminality and punishability have been eliminated by the current law, as well as where the current law does not provide for deprivation of liberty as a punishment for their commission.

Persons whose punishment imposed by a court judgment in the form of a fine, corrective labor, involvement in community service, or restriction of liberty has been replaced with deprivation of liberty shall serve their sentences in medium-security penal enforcement institutions.

Where restriction of liberty is replaced with deprivation of liberty in respect of persons whose deprivation of liberty was previously replaced with restriction of liberty under Article 73 of the Criminal Code, the sentence of deprivation of liberty shall be served in the penal enforcement institution from which that person was released.

Men shall be assigned to serve their sentences of deprivation of liberty in maximum-security penal enforcement institutions in the following cases:

where they are sentenced to deprivation of liberty for the first time for the commission of especially grave crimes and have not previously served a sentence in places of deprivation of liberty;

in cases of recidivism, regardless of whether they have previously served a sentence in the form of deprivation of liberty for the commission of a crime;

where they are sentenced to deprivation of liberty and have previously served deprivation of liberty for the commission of an intentional crime, except for men sentenced to deprivation of liberty for non-violent crimes provided for in Chapters 7, 8, 9, 12 and 13 of the Criminal Code, as well as those convicted of crimes provided for in Chapter 15 of the Criminal Code, provided that they have fully compensated for the damage caused by the crime.

Women shall be assigned to serve their sentences of deprivation of liberty in maximum-security penal enforcement institutions in the following cases:

where they are sentenced to deprivation of liberty and have previously served a sentence of deprivation of liberty for the commission of an intentional crime, except for women sentenced to deprivation of liberty for non-violent crimes provided for in Chapters 7, 8, 9, 12 and 13 of the Criminal Code, as well as those convicted of crimes provided for in Chapter 15 of the Criminal Code, provided that they have fully compensated for the damage caused by the crime;

in cases of dangerous recidivism, regardless of whether they have previously served a sentence of deprivation of liberty for the commission of a crime.

Convictions that have been removed or expunged in accordance with the procedure provided for in Article 79 of the Criminal Code, or removed by an act of amnesty or pardon in accordance with Parts 2 and 4 of Article 78 of the Criminal Code, shall not be taken into account when determining recidivism and may not serve as grounds for assigning maximum-security or maximum-security penal enforcement institutions.

Convictions for crimes committed before reaching the age of eighteen shall not be taken into account when determining recidivism. At the same time, persons sentenced to deprivation of liberty who have previously served deprivation of liberty for intentional crimes committed while they were minors shall be assigned to serve their sentences in maximum-security penal enforcement institutions, taking into account the rules of subparagraph 3) of Part 5 of Article 46 of the Criminal Code.

In maximum-security penal enforcement institutions: persons convicted in cases of dangerous recidivism, as well as persons sentenced to life imprisonment.

If, in accordance with Article 46 of the Criminal Code, a sentence of deprivation of liberty for crimes included in an aggregate is to be served in different types of penal enforcement institutions, the stricter type of penal enforcement institution shall be assigned when determining the final punishment.

In the case of cumulative judgments, the stricter type of institution established by one of the judgments included in the aggregate shall be determined for serving the sentence of deprivation of liberty.

If, for crimes included in an aggregate, the final punishment is imposed by absorbing, through deprivation of liberty, a punishment not involving deprivation of liberty, the type of penal enforcement institution shall be assigned in accordance with the procedure provided for in Article 46 of the Criminal Code, taking into account only the crime for which punishment in the form of deprivation of liberty was imposed”, as stated in paragraph 14 of the previously cited Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated June 23, 2006 (paragraphs 3, 4 and 5).

According to Part 6 of the article under consideration, persons sentenced to deprivation of liberty for a term exceeding five years for the commission of especially grave crimes, as well as in cases of dangerous recidivism, may be assigned to serve part of their sentence, but not more than five years, in full-security penal enforcement institutions.

According to paragraph 10 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan “On Judicial Practice in Assigning Types of Penal Enforcement Institutions to Persons Sentenced to Deprivation of Liberty”: “If a male person is sentenced to deprivation of liberty for a term exceeding five years for the commission of especially grave crimes, as well as in cases of dangerous recidivism, and is assigned, in accordance with Part Six of Article 46 of the Criminal Code, to serve part of the sentence, but not more than five years, in full-security penal enforcement institutions, the decision adopted must be justified in the judgment, and the term of punishment that the convicted person must serve in full-security penal enforcement institutions must be specified. At the same time, the operative part of the judgment should indicate the penal enforcement institutions in which the convicted person must serve the remaining part of the sentence”.

In accordance with paragraph 15-1 of the above-mentioned Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan: “Where a deferment of serving a sentence under Article 74 of the Criminal Code is applied to a person sentenced to deprivation of liberty, the court judgment must specify the type of penal enforcement institution.

Where a conditional sentence is revoked under Part Three of Article 64 of the Criminal Code due to the malicious failure of the conditionally sentenced person to perform the obligations imposed on them during the probationary control period, the sentence of deprivation of liberty shall be served in penal enforcement institutions in accordance with Article 46 of the Criminal Code”.

Where parole is revoked under subparagraph 1) of Part 7 of Article 72 of the Criminal Code, the convicted person shall serve the sentence of deprivation of liberty in the penal enforcement institution from which they were released on parole.

The differences between deprivation of liberty for a fixed term and life imprisonment lie in: 1) the duration of these types of punishment; and 2) the conditions under which they are served.

The general provisions governing the enforcement of punishment in the form of deprivation of liberty are set out in Chapter 16 of the Penal Enforcement Code of the Republic of Kazakhstan.

Persons sentenced to deprivation of liberty are sent to institutions taking into account the conditions necessary for their rehabilitation, the maintenance of socially useful ties, the provision of security, and the prevention of their commission of new crimes.

Foreign nationals sentenced to deprivation of liberty who are serving their sentences in institutions of the Republic of Kazakhstan may be transferred to the states of which they are citizens (defendants) for further service of their sentences, in accordance with the procedure established by international treaties ratified by the Republic of Kazakhstan, or under written agreements on the basis of reciprocity between the Prosecutor General of the Republic of Kazakhstan and the competent authorities and officials of a foreign state, in the manner provided for by the Criminal Procedure Code of the Republic of Kazakhstan.

The following persons serve sentences of deprivation of liberty in minimum-security institutions: 1) convicted persons specified in subparagraph 1) of Part 5 of Article 46 of the Criminal Code; 2) convicted persons transferred from medium- and maximum-security institutions in accordance with Part 1 of Article 96 of the Penal Enforcement Code.

The following persons serve sentences of deprivation of liberty in medium-security institutions: 1) convicted persons specified in subparagraph 2) of Part 5 of Article 46 of the Criminal Code; 2) convicted persons transferred from institutions in accordance with subparagraph 1) of Part 1 and subparagraphs 1) and 2) of Part 3 of Article 96 of the Penal Enforcement Code; 3) convicted persons transferred from medium-security institutions for the detention of minors in accordance with Article 156 of the Penal Enforcement Code. According to Article 156 of the Penal Enforcement Code, convicted persons who have reached the age of eighteen may, with their consent, as well as convicted persons who have reached the age of twenty-one, be transferred to medium-security institutions to serve the remainder of their sentences by a court decision in accordance with the procedure established by the Criminal Procedure Code of the Republic of Kazakhstan.

The following persons serve sentences of deprivation of liberty in maximum-security institutions: 1) convicted persons specified in subparagraph 3) of Part 5 of Article 46 of the Criminal Code; 2) convicted persons transferred in accordance with subparagraph 1) of Part 1 and subparagraph 1) of Part 3 of Article 96 of the Penal Enforcement Code.

The following persons serve sentences of deprivation of liberty in maximum-security institutions: 1) convicted persons specified in subparagraph 4) of Part 5 of Article 46 of the Criminal Code; 2) convicted persons whose death penalty was replaced with deprivation of liberty by way of pardon; 3) convicted persons transferred in accordance with subparagraph 1) of Part 1 and subparagraph 1) of Part 3 of Article 96 of the Penal Enforcement Code.

The following persons serve sentences of deprivation of liberty in full-security institutions: 1) convicted persons specified in Part 6 of Article 46 of the Criminal Code; 2) convicted persons in respect of whom a court judgment imposing the death penalty entered into force before the introduction of the moratorium or during the period when the moratorium on the execution of the death penalty was in effect; 3) convicted persons transferred in accordance with subparagraph 4) of Part 4 of Article 88 of the Penal Enforcement Code; 4) convicted persons sent in accordance with Part 1 of Article 92 and Part 3-1 of Article 96 of the Penal Enforcement Code.

In medium-security institutions for the detention of minors, sentences are served by minors sentenced to deprivation of liberty, as well as convicted persons retained in medium-security institutions for the detention of minors until they reach the age of twenty-one, provided that they have stayed in the institution for at least one year.

Convicted persons serving sentences in institutions who are suspected or accused of committing another crime shall, with the consent of the administration of the institution, be held in those institutions but isolated from other convicted persons serving sentences (Article 89 of the Penal Enforcement Code).

Separate detention of convicted men and women, minors and adults shall be established in institutions.

Persons sentenced to deprivation of liberty for the first time shall be held separately from persons who have previously served deprivation of liberty, except for persons specified in Part 5 of Article 94 of the Penal Enforcement Code. According to Part 5 of Article 94 of the Penal Enforcement Code: “Convicted persons suffering from different infectious diseases shall be held separately from one another and separately from healthy convicted persons. In medical and preventive treatment institutions (hospitals, specialized psychiatric and tuberculosis hospitals), male convicted persons shall be held together regardless of the type of regime determined by the court. In tuberculosis hospitals, separate detention of convicted persons shall be determined by medical indications”.

Women sentenced to deprivation of liberty for the first time and women who have previously served this punishment may be held separately within the same institution.

The following persons shall be held in isolation from other convicted persons and separately: convicted persons in cases of dangerous recidivism; persons sentenced to life imprisonment; persons whose life imprisonment has been replaced with deprivation of liberty for a fixed term by way of pardon; persons whose death penalty has been replaced with deprivation of liberty by way of pardon.

In separate institutions, regardless of the number of convictions, convicted persons who are former employees of courts, law enforcement and special state bodies, and persons authorized to exercise control and supervision over the conduct of convicted persons shall be held (Article 94 of the Penal Enforcement Code).

According to Article 95 of the Penal Enforcement Code, during the enforcement of a sentence, for the purpose of its individualization, the behavior of a convicted person shall be assessed by determining their behavioral grade, which serves as the basis for: 1) changing the institution in which they serve their sentence, in accordance with Article 96 of the Penal Enforcement Code; 2) changing the conditions under which they serve their sentence in institutions, in accordance with Articles 135 “Medium-Security Institutions”, 137 “Maximum-Security Institutions”, 139 “Maximum-Security Institutions”, 142 “Minimum-Security Institutions”, 144 “Full-Security Institutions”, 150 “Procedure for Serving Sentences in Medium-Security Institutions for the Detention of Minors” of the Penal Enforcement Code; 3) expanding their rights or imposing restrictions on their rights in accordance with Articles 128 “Incentive Measures”, 130 “Violations of the Established Procedure for Serving Sentences”, 152 “Incentive Measures Applied in Medium-Security Institutions for the Detention of Minors”, and 154 “Procedure for Applying Disciplinary Measures in Medium-Security Institutions for the Detention of Minors” of the Penal Enforcement Code of the Republic of Kazakhstan.

The behavioral grade of a convicted person shall be determined by a resolution of the head of the institution on the basis of materials submitted by the institution's commission characterizing their behavior (compliance with the internal regulations of institutions; attitude toward work and studies; participation in educational activities; participation in programs aimed at providing social and legal assistance to convicted persons; membership in a voluntary organization of convicted persons; taking measures to compensate for the harm caused by the crime).

The behavioral grades of convicted persons shall be determined on the basis of the following criteria:

first positive behavioral grade — where there is at least one incentive and no disciplinary penalties for a period of three months or more from the date of receipt of the last incentive;

second positive behavioral grade — where the person has the first positive behavioral grade, is a member of a voluntary organization of convicted persons, and has had no disciplinary penalties for a period of six months or more from the date of receiving the first positive behavioral grade;

third positive behavioral grade — where the person has the second positive behavioral grade, is a member of a voluntary organization of convicted persons, and has had no disciplinary penalties for a period of one year or more from the date of receiving the second positive behavioral grade.

For convicted persons with a negative behavioral record:

first negative behavioral grade — upon recognition as a violator of the established procedure for serving a sentence;

second negative behavioral grade — upon recognition as a systematic violator of the established procedure for serving a sentence;

third negative behavioral grade — upon recognition as a malicious violator of the established procedure for serving a sentence.

Recognition of a convicted person as a violator, systematic violator, or malicious violator of the established procedure for serving a sentence shall be carried out in accordance with Part 3 of Article 130 and Part 4 of Article 154 of the Penal Enforcement Code.

A convicted person against whom disciplinary measures have been applied two or more times within six months, except for placement in a disciplinary isolation unit or transfer to a single cell, shall be recognized as a systematic violator of the established procedure for serving a sentence (paragraph 1 of Part 3 of Article 130 of the Penal Enforcement Code).

A convicted person who has committed the violations specified in Part 2 of Article 130 of the Penal Enforcement Code, provided that a disciplinary penalty in the form of placement in a disciplinary isolation unit or transfer to a single cell has been imposed on them, shall be recognized as a malicious violator of the established procedure for serving a sentence (paragraph 2 of Part 3 of Article 130 of the Penal Enforcement Code). With regard to minors, according to Part 4 of Article 154 of the Penal Enforcement Code, a convicted person who has committed the violations specified in Part 2 of that article shall be recognized as a malicious violator of the established procedure for serving a sentence by a resolution of the head of the institution, provided that a disciplinary penalty in the form of a severe reprimand has been imposed on them two or more times.

The procedure for changing an institution is governed by Article 96 of the Penal Enforcement Code, in accordance with which convicted persons having the second or third positive behavioral grade shall have the right to petition the court for a change in the type of:

full-security institution to a maximum-security or medium-security institution — after the convicted person has served at least one-half of the term imposed by the court judgment in the full-security institution;

medium- and maximum-security institutions to minimum-security institutions — after convicted persons serving their sentences under eased and privileged conditions have served at least one-quarter of their sentence for crimes of minor and medium gravity, at least one-third of their sentence for grave crimes, and, in the case of persons previously released from deprivation of liberty on parole who have committed new crimes during the unserved portion of their sentence, at least two-thirds of their sentence.

The following convicted persons shall not be subject to transfer to minimum-security institutions:

in cases of dangerous recidivism;

1-1) for the commission of crimes provided for in Chapter 15 of the Criminal Code of the Republic of Kazakhstan, who have not compensated for the damage caused by the crime;

for the commission of especially grave crimes, as well as terrorist or extremist crimes;

persons sentenced to life imprisonment, as well as convicted persons whose life imprisonment has been replaced with deprivation of liberty for a fixed term by way of pardon;

persons whose death penalty has been replaced with deprivation of liberty by way of pardon;

persons who have not undergone compulsory treatment, as well as those requiring specialized treatment in medical and preventive treatment institutions;

persons having a negative behavioral grade.

With regard to convicted persons who have the third negative behavioral grade and have committed a malicious violation of the established procedure for serving a sentence, submissions shall be made to the court for their transfer from:

a minimum-security institution — to the institution whose type was previously determined by the court judgment;

a minimum-security institution to which they were sent under the court judgment — to a medium-security institution.

Upon the convicted person serving the portion of the sentence established by Part 1 of Article 96 of the Penal Enforcement Code, the administration of the institution shall be obliged, within five days, to notify in writing a convicted person having the second or third positive behavioral grade of the commencement of their right to file a petition with the court to consider the issue of changing the type of institution.

If a convicted person submits a petition to change the type of institution, the administration shall be obliged, within ten days, to forward it to the court together with materials characterizing the convicted person's personality, behavior, and attitude toward work and studies throughout the period of serving the sentence, as well as the convicted person's personal file, and to notify the prosecutor in writing of the forwarding of the said petition.

If the court refuses to change the type of institution, a repeated petition may be submitted no earlier than six months from the date on which the court ruling is issued.

A convicted person in respect of whom the court has issued a ruling on transfer from a minimum-security institution back to the institution whose type was previously determined by the court judgment, or to a medium-security institution, shall be held in a mixed-security institution until the court ruling enters into legal force.

The procedure and conditions for serving a sentence in the form of deprivation of liberty provided for by penal enforcement legislation comply with international instruments to which the Republic of Kazakhstan is a party. These include international standards for the treatment of convicted persons contained in the Standard Minimum Rules for the Treatment of Prisoners (1955), the United Nations Standard Minimum Rules for Non-custodial Measures (the Tokyo Rules, 1990), the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules, 1985), and the Code of Conduct for Law Enforcement Officials (1979).

The above-mentioned instruments expressly state that they shall be applied taking into account the political, socio-economic and cultural conditions of each country, as well as the objectives and tasks of its criminal justice system. The implementation of recommendation-type provisions is carried out by bringing national legislation into conformity with the requirements contained in these documents as the necessary conditions are established.

Thus, Article 10 of the International Covenant on Civil and Political Rights emphasizes that all persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person. This is due to the fact that suspects, accused persons or convicted persons are less protected than other citizens against arbitrariness on the part of the state represented by law enforcement officers and are more likely to become victims of torture, cruel, inhuman or degrading treatment.

The prohibition of torture, violence, and other cruel or degrading treatment or punishment is a general international norm contained in most international instruments on the protection of human rights. These include the United Nations Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of December 9, 1975 (Article 1), and the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of December 10, 1984, ratified by the Republic of Kazakhstan.

The principles defining the procedure, grounds and forms for involving convicted persons serving sentences of deprivation of liberty in labor are formulated in international legal instruments on the treatment of convicted persons. The Universal Declaration of Human Rights, proclaimed on December 10, 1948, at the 183rd plenary meeting of the United Nations General Assembly (Resolution 217 A/III), is of fundamental importance. On December 16, 1966, in furtherance of the provisions of the Declaration, the General Assembly adopted the International Covenant on Civil and Political Rights (Resolution 2200 A/XXI). Article 8 of the Covenant, in accordance with Articles 3 and 4 of the Declaration, prohibits slavery and the slave trade, as well as the reduction of human beings to a state of servitude. The Covenant establishes the prohibition of forced or compulsory labor. However, the following reservation is made: “For the purpose of this article, the term ‘forced or compulsory labor’ shall not include any work or service, not referred to in paragraph 3 (b), normally required of a person who is under detention in consequence of a lawful order of a court, or of a person during conditional release from such detention”. Moreover, the Covenant states that even in countries where deprivation of liberty involving hard labor may be imposed as punishment for a crime, the prohibition of forced labor shall not be considered an obstacle to the performance of hard labor pursuant to a sentence of a competent court that has imposed such punishment.

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.

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