Commentary on Article 62. Calculation of Sentencing Terms and Crediting of Punishment under the Criminal Code of the Republic of Kazakhstan

1. The terms of deprivation of the right to hold certain positions or engage in certain activities, restriction of liberty, and deprivation of liberty shall be calculated in months and years; arrest shall be calculated in days; and involvement in community service shall be calculated in hours.

2. When replacing or combining the punishments specified in Part One of this Article, as well as when crediting punishment, the terms may be calculated in days.

3. The period of detention in custody before the judgment enters into legal force shall be credited toward the term of punishment at the following rates:

1) one day of detention for one day of serving a sentence of deprivation of liberty in a maximum-security, emergency-security, or full-security institution;

2) one day of detention for one and a half days of serving a sentence of deprivation of liberty in a medium-security institution, as well as in a medium-security institution for the detention of minors;

3) one day of detention for two days of serving a sentence in a minimum-security institution.

3. The period of detention in custody before the judgment enters into legal force shall be credited toward the term of punishment at the following rates:

1) one day of detention for one day of serving a sentence of arrest;

2) one day of detention for two days of serving a sentence of restriction of liberty;

3) one day of detention for four hours of community service;

4) one day of detention for four monthly calculation indices of corrective labor or a fine, respectively.

4. The period of house arrest before the judgment enters into legal force shall be credited toward the term of punishment in the form of deprivation of liberty, restriction of liberty, or arrest at the rate of two days of house arrest for one day of punishment; and toward punishment in the form of community service, corrective labor, or a fine at the rate of one day of house arrest for two hours of community service or two monthly calculation indices, respectively.

5. The period during which a person was held in custody before the court judgment entered into legal force, and the period of serving a sentence of deprivation of liberty imposed by a court judgment for a crime committed outside the Republic of Kazakhstan, in the event of the person's extradition pursuant to Article 9 of this Code, shall be credited at the rate of one day for one day.

6. When a judgment is reviewed and the person is sentenced to a different type of punishment, the period served or the amount of punishment executed before the review of the judgment shall be credited toward the term or amount of the new punishment. When crediting the period served or the amount of punishment executed:

1) one day of deprivation of liberty shall correspond to four monthly calculation indices of a fine or corrective labor, four hours of community service, one day of arrest, or one day of restriction of liberty;

2) one day of restriction of liberty shall correspond to four monthly calculation indices of a fine or corrective labor, four hours of community service, or one day of arrest;

3) one day of arrest shall correspond to four monthly calculation indices of a fine or corrective labor, or four hours of community service;

4) one hour of community service shall correspond to one monthly calculation index of a fine or corrective labor;

5) one monthly calculation index of corrective labor shall correspond to one monthly calculation index of a fine.

7. The period during which compulsory medical measures were applied to a person who developed a mental or behavioral disorder (illness) after committing a crime shall be credited toward the term or amount of punishment.

A mechanism for calculating the types of criminal punishment is a prerequisite for ensuring the objectives of punishment and the proper and accurate execution of a court judgment. In accordance with Part 1 of the Article under consideration, the terms of deprivation of the right to hold certain positions or engage in certain activities, restriction of liberty, and deprivation of liberty shall be calculated in months and years; arrest shall be calculated in days; and involvement in community service shall be calculated in hours.

When replacing or combining the punishments specified in Part 1 of the Article under consideration, as well as when crediting punishment, the terms may be calculated in days (Part 2 of Article 62 of the Criminal Code).

Part 3 of the Article under consideration establishes provisions according to which the period of detention in custody before the judgment enters into legal force shall be credited toward the term of punishment in the form of deprivation of liberty, arrest, or restriction of liberty at the rate of one day for one day, and toward punishment in the form of community service at the rate of one day of detention for four hours of community service (Part 3 of Article 62 of the Criminal Code).

In accordance with Paragraph 9-1 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan “On Certain Issues of Sentencing”:

“Only the period during which a person was held in custody in a criminal case before the judgment entered into legal force, including the period of detention of a person suspected of committing a criminal offense in accordance with the procedure provided for in Article 131 of the Criminal Procedure Code, shall be credited toward the term of criminal punishment in accordance with the rules of Part Three of Article 62 of the Criminal 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, their transfer, replacement of punishment, etc.) shall be credited toward the term of criminal punishment without applying the rules of Part 3 of Article 62 of the Criminal Code.”

The period of house arrest before the judgment enters into legal force shall be credited toward the term of punishment in the form of deprivation of liberty, arrest, or restriction of liberty at the rate of two days for one day, and toward punishment in the form of community service at the rate of one day of house arrest for two hours of community service.

When deciding on the extradition of foreign nationals and stateless persons who have committed crimes outside the Republic of Kazakhstan and are located within the territory of Kazakhstan, it is necessary to determine how the periods of their house arrest, detention in custody, and service of a sentence of deprivation of liberty are to be credited. The basis for resolving this issue between CIS countries is the Chisinau Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters, adopted on October 7, 2002. With other countries, this issue is resolved on the basis of bilateral and multilateral international treaties and agreements.

In such cases, the period of house arrest before the court judgment enters into legal force and the period of serving a sentence of deprivation of liberty imposed by a court judgment for a crime committed outside the Republic of Kazakhstan, in the event of the person's extradition pursuant to Article 9 of the Criminal Code, shall be credited at the rate of one day of house arrest for two hours of community service.

The period during which a person was held in custody before the court judgment entered into legal force and the period of serving a sentence of deprivation of liberty imposed by a court judgment for a crime committed outside the Republic of Kazakhstan, in the event of the person's extradition pursuant to Article 9 of the Criminal Code, shall be credited at the rate of one day for one day.

When imposing a principal punishment in the form of a fine on a convicted person held in custody pending trial, the court, taking into account the period of detention in custody, shall mitigate the imposed punishment or fully release the person from serving that punishment (Part 6 of Article 62 of the Criminal Code).

The period during which compulsory medical measures were applied to a person who developed a mental illness after committing a crime shall be credited toward the term of punishment (Part 7 of Article 62 of the Criminal Code).

Commentary of 2021 to 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 the 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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