Comment to article 480. Consideration of issues of conditional early release from punishment or replacement of the unserved part of the punishment with a more lenient punishment The Criminal Procedure Code of the Republic of Kazakhstan

The issue of conditional early release from punishment or replacement of the unserved part of the punishment with a more lenient punishment is considered at the request of the convicted person, as well as in the case provided for in part five of Article 478 of this Code.

The institution or body executing the punishment is obliged to provide the court with materials relevant for making a lawful decision, including evidence confirming the length of the sentence served by the convicted person, information on compensation for damage caused by the crime, detailed data characterizing the behavior of the convicted person while serving the sentence, including information about his treatment for alcoholism and drug addiction and its results, the presence of other diseases that require mandatory treatment, the relationship with family members, and others. The sentence entered into force within the framework of the procedural cooperation agreement must be attached to the petition of the Prosecutor General of the Republic of Kazakhstan or his deputy. The institution or body executing the punishment provides the court with an opinion on the degree of correction of the convicted person at this moment and the need for him to serve the entire sentence or lack thereof. The institution or body executing the punishment and the convicted person themselves must also provide the court with information about the convicted person's intended place of residence after release and the prospect of his employment (written consent from relatives, provision of housing, place of work by the organization, local governments).

The convicted person has the right to familiarize himself with the materials submitted to the court before the start of the court session, to submit his explanations, evidence, and petitions.

If the submission raises the issue of replacing the unserved part of the punishment with a milder punishment, the institution or body executing the punishment, in addition to the information specified in part two of this article, shall provide the court with a reasoned opinion on the type and amount of the sentence, which, taking into account its degree of correction and individual qualities, can be determined by the convicted person to serve as a substitute.

When considering the issue of conditional early release from punishment or the replacement of the unserved part of the punishment with a more lenient punishment, the participation in the court session of the convicted person, the defender, the representative of the institution or body executing the punishment, the prosecutor is mandatory. The non-appearance of the victim, the civil plaintiff and their representatives does not prevent the consideration of the petition.

After the preparatory part of the court session has been held, the convicted person or the institution or body executing the punishment, respectively, shall present the petition. Then the court examines the received materials and listens to the explanations of the persons who appeared at the court session. The convicted person has the right to participate in the examination of all materials at the court session, speak in court and express his opinion on the issue under consideration.

The prosecutor presents to the court a reasoned opinion on the possibility of satisfying the petition or leaving it without satisfaction.

Based on the results of the review, the court issues a resolution:

1) on the satisfaction of a petition for the conditional early release of a convicted person from further serving his sentence or a petition for the replacement of the unserved part of the sentence with another more lenient punishment;

2) the refusal to grant a request for parole or a request to replace the unserved portion of the sentence with another more lenient punishment.;

3) the refusal to satisfy the application for conditional early release from punishment with a decision to replace the unserved part of the punishment with another more lenient punishment.

The court has the right to make a decision on replacing the unserved part of the punishment with another more lenient punishment both upon satisfaction of the application received for this, and upon refusal to satisfy the application for parole.

1. Data characterizing his personality, behavior, attitude to work and education during the period of serving his sentence shall be attached to the petition of the convicted person for conditional early release from serving his sentence, for the replacement of the unserved part of the punishment with a milder type of punishment by the body executing the punishment. The sentence entered into force within the framework of the procedural cooperation agreement must be attached to the petition of the Prosecutor General of the Republic of Kazakhstan or his deputy.

Simultaneously with the petition, the personal file of the convicted person is sent to the court.

Courts should not accept applications for parole that do not comply with legal requirements.: They do not contain data characterizing the personality of the convicted person, his behavior, attitude to work and education for the entire period of serving the sentence, and indicating that he does not need to serve the full sentence, as well as information about the serving of the legally prescribed part of the sentence.

If the submitted materials do not contain sufficient data for consideration, and it is impossible to fill them in during the court session, the judge, when preparing the material for the hearing or consideration, returns them by letter for appropriate registration.

2. The issues of conditional early release from punishment or the replacement of the unserved part of the punishment with a more lenient punishment shall be resolved by the judge of the district and equivalent court at the place of serving the sentence by the convicted person.

The participation in the court session of representatives of the institutions and bodies that sent the petition, as well as the convicted person and the prosecutor is mandatory.

Participation in a court hearing by a defender is mandatory in cases where a petition is being considered in relation to minors, persons who do not speak the language in which the proceedings are conducted, as well as persons who, due to physical or mental disabilities, cannot independently exercise their rights.

The convicted person has the right to get acquainted with the materials submitted to the court, participate in their consideration, file petitions and challenges, give explanations, and present evidence.

3. The court's decision is made in the form of a ruling, which must be motivated and contain detailed justification for the conclusions reached by the court as a result of consideration of the petition.

Based on the results of consideration of the petition of the body responsible for the execution of the sentence or ensuring the correction of the minor, the judge may decide to grant the petition or to refuse to grant it.

When considering an application for parole, the court has no right to replace the unserved term of imprisonment with a suspended sentence, reduce the unserved term of punishment, but can only release the convicted person on parole or replace the unserved part of the sentence with another, milder punishment, or refuse to do so.

Commentary to the Criminal Procedure Code of the Republic of Kazakhstan from the Supreme Court of the Republic of Kazakhstan

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