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NORMATIVE RESOLUTION OF THE SUPREME COURT OF THE REPUBLIC OF KAZAKHSTAN

of June 23, 2006 No. 7

About court practice of purpose of types of organizations criminally - executive system to persons condemned to imprisonment

(as amended on 28-09-2023)

Due to the change of the penal legislation of the Republic of Kazakhstan regulating procedure for purpose of types of organizations of criminal executive system and for the purpose of ensuring the correct and uniform application of the law, the plenary session of the Supreme Court of the Republic of Kazakhstan decides:

1. The correct determination of type of organization of criminal executive system is important for goal achievement of punishment and provides individualization of execution of the punishment taking into account weight of the committed crime, the identity of the criminal, its age and floor. Courts need to be guided strictly by provisions of Articles 46, of 81 Criminal Code of Kazakhstan (further - UK) determining procedure for purpose of type of organization of criminal executive system in which person condemned to imprisonment shall serve sentence.

At the same time it must be kept in mind that the law excludes possibility of purpose of this or that type of organization of criminal executive system according to the judicial discretion.

2. Persons (men and women), convicts go to organizations of criminal executive system of the minimum safety:

for the crimes committed on imprudence irrespective of punishment term;

for the crimes which are not connected using violence, provided by Chapters 7, of 8, of 9, 12 and 13 UK;

for the crimes provided by Chapter 15 of UK in case of full recovery them the damage caused by crime, except for the crimes provided by parts 1-1, of the second, third and fourth Article 366, parts two, third and fourth Article 367, part two of article 368 UK;

for the first time condemned for making of intentional crime for which penalty to imprisonment for a period of up to two years inclusive, except for the crimes provided by parts 1-1, of the second, third and fourth Article 366, parts two, third and fourth Article 367, part two of article 368 UK is imposed.

Owing to requirements of part three of article 19 Code of Criminal Procedure to the persons, previously convicted but who were not leaving imprisonment, and condemned serving sentence for making of new intentional crime for which penalty to imprisonment for a period of up to two years inclusive is imposed it is appointed in organizations of criminal executive system of the minimum safety.

3. To persons (men and women) serving sentence in the form of imprisonment in organizations of criminal executive system of average safety is appointed:

the convict to imprisonment for the term of over two years for making of intentional crimes (average weight, heavy and especially heavy) who was earlier not serving custodial sanction;

the convict to imprisonment, including for the term of less than two years, for making of the crimes provided by parts 1-1, of the second and third article 366 UK, parts two and third article 367 UK, part two of article 368 UK, earlier not serving custodial sanction;

to persons who were earlier not serving custodial sanction which penalty, corrective works, attraction to social jobs, restriction of freedom are replaced with imprisonment.

4. Serving sentence in the form of imprisonment in organizations of criminal executive system of the maximum safety is appointed to persons (men and women):

the convict to imprisonment who was earlier leaving imprisonment for making of intentional crime;

to the persons condemned to imprisonment for making of the crimes provided by parts 1-1, of the second and third article 366 UK, parts two and third article 367 UK, part two of article 368 UK, who were earlier leaving imprisonment for making of intentional crime or crime on imprudence;

to persons which were earlier leaving imprisonment for making of intentional crime or crime on imprudence to which penalty, corrective works, attraction to social jobs, restriction of freedom are replaced with imprisonment.

4-1. Taking into account provisions of part three of article 19 Code of Criminal Procedure to persons (men and women) who were earlier leaving imprisonment for crimes on imprudence, serving of imprisonment is appointed:

the convict specified in Item 1) to part five of article 46 UK in organizations of criminal executive system of the minimum safety;

the convict to imprisonment for the term of over two years for making of intentional crimes in organizations of criminal executive system of average safety;

the convict to imprisonment for making of the crimes provided by parts 1-1, of the second and third article 366 UK, parts two and third article 367 UK, part two of article 368 UK and to persons to whom penalty, corrective works, attraction to social jobs, restriction of freedom are replaced with imprisonment, in organizations of criminal executive system of the maximum safety.

4-2. In case of application of provisions of article 46 UK in edition of the Law of the Republic of Kazakhstan of March 17, 2023 No. 212-VII "About modification and amendments in some legal acts of the Republic of Kazakhstan concerning human rights in the field of criminal trial, execution of the punishment, and also the prevention of tortures and others cruel, inhuman or degrading treatments" (further - the new penal statute) it is necessary to recognize that the new penal statute becomes effective after sixty calendar days after day of its official publication (the Kazakhstanskaya Pravda newspaper of March 20, 2023 No. 53), that is since May 20, 2023.

In this regard it is necessary to recognize that in case of removal of court resolution till May 20, 2023 provisions of article 46 UK in edition of the Law till March 17, 2023, and since May 20, 2023 - the new penal statute are applied. The court resolutions which became effective till May 20, 2023 are subject to revision based on part one of article 6 UK according to the procedure of execution of sentence.

At the same time it must be kept in mind that according to new edition of article 79 UK repayment or removal of criminal record of person does not cancel the fact of serving of imprisonment by it which is subject to accounting by court in case of determination to the convict of type of organization of criminal executive system for again committed crime. In this regard, to persons which were earlier leaving imprisonment on whom criminal records are extinguished or removed in the procedure established by the law the type of organization of criminal executive system shall be appointed taking into account Item provisions 3) of part five and parts six of article 46 UK as to persons which were earlier leaving imprisonment. It is also necessary to consider that in these cases the new penal statute according to requirements of part three of article 6 UK is applied only to persons who committed crime after May 19, 2023.

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