Constitutional Court: issues of postponement of punishment are within the procedural competence of the court

Теlegram CС - https://t.me/consot_kz 

 

A citizen appealed to the Constitutional Court with a request to check the constitutionality of part three of Article 478 of the Criminal Procedure Code of the Republic of Kazakhstan.

The basis for the appeal was the refusal of the court to consider the application for deferment of serving the sentence, filed by the applicant's lawyer, due to the fact that the challenged norm of the CPC provides for the filing of such an application exclusively by the convicted person himself or by the institution of the penal correctional system. The applicant considered that this provision violated his constitutional rights to qualified legal assistance, judicial protection and equality before the law.

Under article 75, paragraph 2, of the Criminal Code, in the presence of a serious illness preventing the serving of a sentence (with the exception of life imprisonment), the court may release the convicted person from punishment, defer its execution or replace it with a milder type of punishment, taking into account the nature of the illness, the gravity of the crime committed, the personality of the convicted person and other circumstances.

The said rule does not affect the applicant's rights, since the application for a stay of execution of the sentence was not based on the applicant's illness. In this connection the rules of Articles 475 of the CCP and 74 of the CC were to be applied. According to Article 475 § 3 of the CCP, the decision on such a matter falls within the competence of the court which passed the judgment or the court in whose area the judgment is enforced.

Thus, the appeal does not meet the admissibility requirements established by the Constitutional Law “On the Constitutional Court of the Republic of Kazakhstan”.