A.M. Seralieva
Candidate of legal sciences
Kazakh National Educational
University named after Abai
In the
modern context, the economy and popular consciousness of our country have
positively changed as well as the social environment in whole has modified to
the better. Therefore, there is an objective cause for the society to
reconsider its attitude to the general problems of determination and purpose of
punishment [1, p.22].
Basic
types of punishment for crimes envisaged by Section 115 and Section 116 of the
Criminal Code of the Republic of Kazakhstan are fine, arrest, custodial
restraint and imprisonment for up to 2 years under Section 115 of the Criminal
Code of the RK, up to 1 year under Section 116 subsection 1 of the Criminal
Code of the RK, up to 5 years under Section 116 subsection 1 of the Criminal
Code of the RK, up to 8 years under Section 116 subsection 4 of the Criminal
Code of the RK, and up to 5 years under Section 116 subsection 4 of the
Criminal Code of the RK, as well as corrective works, deprivation of right to
hold specific posts or engage in specified activity.
The
criminal acts envisaged by Section 115 of the Criminal Code of the RK invoke
infliction of fine both as basic and alternative measure of punishment.
Necessity and amount of fine is determined by court depending on property
status of the offender and taking into account the aggravating and attenuating
circumstances and the limits stipulated by the Section of the Criminal Code
regulating the committed crime.
In case of
malicious evasion of payment of fine set under the Section 115 of the Criminal
Code of the RK it could be changed to corrective works, community services or
arrest, at that one month of corrective works, or eighty hours of community
services, or ten days of arrest are equated with an amount of fine equal to
three monthly calculation indices in accordance with Section 42, Section 43 and
Section 46 of the Criminal Code of the RK.
Corrective
works are the most common type of punishment used only with respect to
malicious offenders as an alternative to a fine. Corrective works as a criminal
punishment involve rigorous imprisonment for the period determined by the court
and deduction of a portion of earnings to the State (Section 43 of the Criminal
Code of the RK). Corrective works could be inflicted as the main type of
punishment only.
In case of
malicious evasion of service of punishment by a person sentenced to the
corrective works the court could change the unserved term of the corrective
works to the custodial restraint, arrest or imprisonment with the same period
(Section 43 subsection 4 of the Criminal Code of the RK). The term “malicious
evasion of corrective works” is defined in Section 42 subsection 3 of the
Criminal Code of the RK.
Section
116 subsection 1 of the Criminal Code of the RK prescribes arrest as an
alternative method of punishment. Being the main type of punishment prescribed
by Section 116 subsection 1 of the Criminal Code of the RK, custodial restraint
is an alternative to imprisonment. It is to be recalled that development of
custodial restraint as an institution of punishment is related to
implementation of best practices of probation existing in many countries [2].
Nevertheless,
the custodial restraint is a more severe punishment than corrective works due
to its more expressed repressive character. Its execution should decrease use
of such inefficient type of punishment as imprisonment and promote
rehabilitation of the offenders without custody [3, p. 64 - 66].
Section
115 and Section 116 of the Criminal Code of the RK prescribe imprisonment as a
measure of criminal punishment. In accordance with the Decree of Plenum of the
Supreme Court of the Republic of Kazakhstan dated 19 October 2001 No.15 “On
several issues of the punishment of deprivation of liberty” [4] imprisonment is
the most severe punishment prescribed by law and should be inflicted when other types of punishment could not provide the
redemption of the offender and prevention of new offences.
At
the time the Law of the Republic of Kazakhstan “On amendments and adoptions to
Criminal Code, Criminal Procedural Code and Correctional Code of the Republic
of Kazakhstan” was adopted [5], almost sixty thousand offenders have been
serving sentences in the state correctional facilities.
Decriminalization,
exclusion of imprisonment from sanctions of separate elements of crimes as well
as change of upper limits of sanctions of separate elements of crimes resulted
in a re-examination of seven and a half thousand cases, 150 prisoners have been
released from penalty and term for serving punishment have been reduced for
2660 prisoners. When imposing imprisonment, term of serving punishment shall be
determined in the context of its adequacy. Arrest as a preventive measure shall
not been taken into account by the court when determining the punishment or be
a cause for compulsory imprisonment.
Offenders
sentenced in accordance with Section 115 and Section 116 of the Criminal Code
of the RK serve sentence in penal settlements, correctional colonies of general
regime, correctional colonies of strict and special regime, and in prison.
The
legal status of the offenders serving sentences under Section 115 and Section
116 of the Criminal Code of the RK, with limited exceptions, complies with the
status of the offenders ill with AIDS and STD who serve sentences in the
correctional institutions of the Republic of Kazakhstan in accordance with the
Correctional Code of the Republic of Kazakhstan (Section 71 subsection 2 and
Section 93 subsection 3 of Correctional Code of the Republic of Kazakhstan, and
other).
The
court shall change the type of a correctional facility determined by the
sentence in accordance with the Correctional Code of the Republic of
Kazakhstan. The legal process of assignment of the offenders by the type of
correctional facility improves relevance of the imposed sentence in a greater
degree and predetermines judicial control [6, p.58]. It is necessary to
complement the review of the existing legislation regarding punishment and
criminal responsibility for infecting other people with STD/AIDS by theoretical
legal aspects.
The
measures needed in the correctional sphere are the following:
·
Creating of conditions for wide use of legal measures
not related to custody for the purpose of economy of criminal repression
measures. Development of legislation and court methods to correlate type and
measure of legal pressure with the most probable efficiency for a particular
offender;
·
Increasing efficiency of alternative measures of
punishment for which purpose the institutional development of specialized
responsible authority is required;
·
Since imprisonment is the main type of the punishment
it is essential to take measures improving educational component of the
punishment in which a penalty prevails so far. In particular, it is necessary
to develop content, forms and methods of correctional and educational influence
based on the principle of individualization of punishment;
·
Employment of the offenders in socially useful labor
and/or education is very important; therefore, it is essential to develop
rehabilitation measures, including antialcohol and antidrug programs or other
forms of social activity;
·
Taking into account strict regulations for the order
and discipline in the institutions of the penal system it is necessary to
strengthen psychological and educational measures of execution (service) of
punishment, status and social and legal protection of the staff of the
correctional system;
·
Established procedures of public control contribute to
keeping balance of the interests of the society and the state regarding
punishment and rights of the offenders during the service of the sentence;
·
Improving of medical services for the offenders in the
correctional facilities, especially in preventing diseases;
·
System measures of planned state policy in the sphere
of rehabilitation of persons released from the correctional facilities.
Overall,
it is necessary to move the criminal sanction system closer to the
internationally recognized standards.
REFERENCES
1. T.K.
Akimzhanov On several issues of modern
criminal policy of the Republic of Kazakhstan // World and regional trends of
modern criminality and counteraction strategy. Devoted to Academician of the
Academy of Natural Sciences of the Republic of Kazakhstan, Honored Worker of
Science and Technology of the Republic of Kazakhstan, Doctor of Juridical
Science, Prof. Ye.I. Kairzhanov; Papers of International Research and Practice
Conference, Almaty: Kazakh National University named after al-Farabi, 17.09.2011.- P. 22
2. M.
Geta Alternatives to punishment:
origins, nature and perspectives // Law Journal. 12 March 2003.
3. A.V.
Borodak Legislation regarding spread of
sexually transmitted diseases // ÑÇ. - 1976. - ¹3. - P.
64 - 66.
4. The
regulatory resolution of the Supreme Court of the Republic of Kazakhstan On
several issues of infliction of penalty in the form of imprisonment: approved
19 October 2001, No.15 (as of 22 December 2008, as amended) // Kazakhstanskaya
Pravda. 17 November 2001.
5. The Law of
the Republic of Kazakhstan, 21 December 2002, No.363-II On amendments and
adoptions to Criminal Code, Criminal Procedural Code and Correctional Code of
the Republic of Kazakhstan” // Kazakhstanskaya Pravda, 28 December 2002.
6. D.A.
Nurbayev Correctional Law of the
Republic of Kazakhstan: Text Edition, Almaty, “Lawyer”, 2009. - 120 p.