Commentary on Article 63. Conditional Conviction of the Criminal Code of the Republic of Kazakhstan
1. If, having imposed a sentence of imprisonment, the court concludes that the convicted person can be rehabilitated without serving the sentence, it shall rule that the imposed sentence be deemed conditional.
2. When applying conditional conviction, the court shall take into account the nature and degree of public danger of the crime committed, the personality of the offender, including circumstances mitigating and aggravating liability and punishment.
3. When imposing conditional conviction, the court shall establish probationary supervision, in accordance with the rules set out in paragraph two of Article 44 of this Code, for the entire term of imprisonment imposed, and, in respect of minors, for a period of six months to one year.
Conditional conviction may also be applied to minors who repeatedly commit a crime of minor or medium gravity during the period of probationary supervision while serving a conditional conviction.
Probationary supervision shall not be established when conditional conviction is applied to a foreign national or stateless person whom the court has sentenced to expulsion from the Republic of Kazakhstan as an additional punishment.
4. When conditional conviction is imposed, additional types of restrictions and punishments may be imposed.
5. When conditional conviction is imposed, compulsory educational measures may be imposed on a minor.
6. Conditional conviction shall not be applied to persons in cases of recidivism, dangerous recidivism, conviction for an especially grave crime, a corruption crime, a terrorist crime, an extremist crime, a crime committed as part of a criminal group, or a crime against the sexual inviolability of minors. This restriction shall not apply to minors who have committed a crime against the sexual inviolability of a minor aged fourteen to eighteen years.
The institution of conditional conviction is widely used in the legislation and judicial practice of most modern countries. Being an effective criminal-law measure, it contributes to reducing the use of imprisonment. Without exaggeration, conditional conviction can be described as one of the most striking manifestations of humanism in criminal law. Embodying the principles of humanism, individualisation of liability and justice, conditional conviction is based on trust in the convicted person.
There is no unified opinion in legal literature regarding the legal nature of conditional conviction. An examination of the positions of legal theorists concerning the classification of conditional conviction, as well as the theoretical and practical material accumulated by legal science, makes it possible to recognise this institution as a special form of implementing criminal liability or, as certain criminal-law theorists put it, a means of implementing criminal liability. At the same time, conditional conviction contains certain features of releasing a convicted person from actually serving the sentence of imprisonment imposed on them, thereby bringing it closer to the institution of release from punishment. However, the offender is released only from the principal punishment, while additional punishments are subject to actual enforcement. It should also be noted that conditional conviction is located in Section 4, “Sentencing”, of the Criminal Code, rather than in Section 5, “Release from Criminal Liability and Punishment”.
Conditional conviction does not belong to the category of criminal punishments. It is not included in the list of types of punishment provided for in Article 40 of the Criminal Code. The existence of the institution of conditional conviction in criminal law represents the implementation of the principles of justice and humanism, and this institution is applied in cases where the court, having imposed a sentence of imprisonment, concludes that the convicted person can be rehabilitated without serving the sentence. In such a case, the court rules that the imposed sentence be deemed conditional.
The conditional imposition of punishment is possible in cases where, in the court's opinion, the objectives pursued by punishment can be achieved without its actual service due to certain circumstances characterising both the personality of the offender and the act committed. The court's conclusion that the convicted person can be rehabilitated without serving a sentence of imprisonment must be substantiated in the judgment. For example, the convicted person has a permanent place of employment and residence, receives only positive references from their place of residence and work and, importantly, is a caring family member, has not previously committed offences, and so on.
By deciding that the imposed sentence is to be deemed conditional, the court places certain conditions on the convicted person, which they must fulfil throughout the probationary period. Thus, the person is convicted and thereby recognised as guilty, meaning that criminal liability is imposed on them.
The basis for applying conditional conviction is the existence of a court conclusion that the convicted person can be rehabilitated without isolation from society. According to subparagraph 10) of Article 3 of the Penal Enforcement Code, rehabilitation shall mean the development in a convicted person of law-abiding behaviour and a positive attitude towards the individual, society, work, and the norms, rules and ethics of behaviour in society.
The essence of conditional conviction is to subject the convicted person to a probationary period during the term of probationary supervision specified in the judgment. Upon expiry of this period, the offender who has fulfilled the conditions of the probation is unconditionally released from punishment and is deemed to have no criminal record (paragraph 3 of Article 79 of the Criminal Code). Moreover, upon expiry of the probationary supervision period, the court is not required to consider the question of releasing the conditionally convicted person from serving the sentence.
The decision to impose a conditional sentence is made by the court taking into account the nature and degree of public danger of the crime committed, the personality of the offender, including circumstances mitigating and aggravating liability and punishment (paragraph 2 of Article 63 of the Criminal Code), which enable the court to conclude that the convicted person can be rehabilitated without serving the sentence.
For commentary on the nature and degree of public danger, see the commentary to Article 59 of the Criminal Code.
The personality of the offender can be examined only by analysing their living conditions and lifestyle, domestic habits and employment activities, as well as the form and degree of guilt and the motive and purpose of committing the crime. Circumstances mitigating liability that characterise the personality of the convicted person include admission of guilt; remorse for the act committed; a positive reference from the place of residence, work or study; absence of a criminal record; minority; health condition; assistance to the investigation; compensation for the damage caused; commission of the crime for the first time, and so on (paragraphs 1 and 2 of Article 53 of the Criminal Code).
Aggravating circumstances include the commission of a crime by a group of persons, a group of persons acting by prior agreement, or a criminal group; an especially active role in committing the crime; involving persons suffering from mental disorders or minors in the commission of a crime; committing a crime against a woman whom the offender knows to be pregnant, as well as against a young child, another defenceless or helpless person, or a person dependent on the offender; committing a crime by abusing the trust placed in the offender by virtue of their official position or a contract, and so on (paragraph 1 of Article 54 of the Criminal Code).
When imposing conditional conviction, the court, in accordance with paragraph 2 of Article 44 of the Criminal Code, establishes probationary supervision for the entire term of imprisonment imposed, and, in respect of minors, for a period of six months to one year (paragraph 3 of the Article under commentary).
Paragraph 39 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan “On the Court Judgment” also states: “In cases of conditional conviction, the court shall establish probationary supervision for the entire term of imprisonment imposed, and, in respect of minors, for a period of six months to one year. Probationary supervision includes the performance by the convicted person of the obligations specified in paragraph two of Article 44 of the Criminal Code.
Where a person has committed several criminal offences, the decision to impose a conditional sentence under Article 63 of the Criminal Code shall be indicated after the final measure of punishment has been determined.”
When imposing a sentence of imprisonment and applying conditional conviction, the court must specify in the judgment the date on which probationary supervision ends, which shall correspond to the date on which the term of imprisonment expires. From that date onwards, provided that the probationary supervision period has not been extended by the court and conditional conviction has not been revoked, the conditionally convicted person shall no longer be deemed to have a criminal record, and the sentence of imprisonment imposed on them shall be annulled.
In accordance with subparagraph 9) of Article 3 of the Penal Enforcement Code, probationary supervision is the activity of authorised bodies aimed at monitoring the fulfilment by persons registered with them of the obligations imposed on them by law and by the court.
When probationary supervision is established, pursuant to paragraph 2 of Article 44 of the Criminal Code, the court may impose the following obligations on conditionally convicted persons: not to change their permanent place of residence, employment or study without notifying the authorised state body exercising supervision over the convicted person's conduct; not to visit certain places; to undergo treatment for alcoholism, drug addiction, substance abuse or sexually transmitted diseases; to provide material support to their family; and to fulfil other obligations that contribute to the rehabilitation of the convicted person and the prevention of new criminal offences.
The list of the specified obligations is not exhaustive; the court may impose other obligations that contribute to the person's rehabilitation. Certain obligations may be imposed on the convicted person jointly or separately, depending on the characteristics of their personality. During the probationary supervision period, the court may, upon the submission of the probation service, cancel all or part of the previously established obligations or supplement them.
When a sentence of imprisonment is conditionally imposed on a person who committed a crime while a minor, the duration of probationary supervision shall be established within the range of six months to one year (paragraph 3 of Article 63 of the Criminal Code). The court shall determine the probationary supervision period for a convicted person who committed a crime while a minor, taking into account the nature and degree of public danger of the crime, the personality of the offender and the amount of the sentence imposed. The decisive factor for the court is the conclusion as to how much time is necessary for the rehabilitation of the convicted person. Depending on the above circumstances, the probationary supervision period may be equal to, shorter than or longer than the term of imprisonment imposed. For example, when sentencing a person to one year of imprisonment conditionally, the court may establish a probationary supervision period of six months, nine months or one year.
The principal purpose and significance of the probationary supervision period is to provide the convicted person with time to rehabilitate without actually serving the sentence. The value of establishing a probationary supervision period lies in the fact that only during this period, if the convicted person violates the conditions of probation, does the court have the right to enforce the sentence actually imposed. During the probationary supervision period, the conditionally convicted person is deemed to have a criminal record.
In order to increase the effectiveness of conditional conviction, when pronouncing the judgment, the court must explain to the conditionally convicted person the significance of the probationary period and warn them about the consequences of committing a new criminal or administrative offence during that period. The Supreme Court of the Republic of Kazakhstan also draws attention to this matter.
Thus, according to paragraph 10 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan “On Certain Issues of Sentencing”: “In cases of conditional conviction, the court shall explain to the convicted person and their legal representatives the possible consequences for them of failing to fulfil the obligations imposed by the court or committing administrative or criminal offences.”
Taking into account the importance of rehabilitating a minor convicted person without isolating them from society, the legislator has determined that conditional conviction may also be applied to this category of persons where they repeatedly commit a crime of minor or medium gravity during the period of probationary supervision while serving a conditional conviction.
Probationary supervision shall not be established when conditional conviction is applied to a foreign national or stateless person whom the court has sentenced to expulsion from the Republic of Kazakhstan as an additional punishment.
When conditional conviction is imposed, additional types of restrictions and punishments may be imposed (paragraph 4 of the Article under commentary). In this regard, it should be borne in mind that conditional conviction is applicable only where imprisonment is imposed as the principal punishment and does not provide for the principle of conditionality in respect of other types of punishment. Conditionality does not apply to additional punishment either. Where a person is conditionally convicted to imprisonment, the additional punishment under that judgment is enforced actually and independently.
When conditional conviction is imposed, it is possible to impose either one or several additional punishments. This conclusion follows from the wording of paragraph 4 of the Article under commentary, which provides for the possibility of imposing additional punishments, rather than an additional punishment, in cases of conditional conviction. Unlike the principal punishment, which is conditional, additional punishments are actually enforced after the judgment enters into legal force.
When conditional conviction is imposed, compulsory educational measures may also be imposed on a minor (paragraph 5 of the Article under commentary). In accordance with Article 84 of the Criminal Code, these include: a warning; placement under the supervision of parents or persons replacing them, or a specialised state body; imposition of an obligation to make amends for the damage caused; restriction of leisure activities and establishment of special requirements for the minor's behaviour; placement in an educational organisation with a special regime of detention; imposition of an obligation to apologise to the victim; and establishment of probationary supervision.
In accordance with Article 63 of the Criminal Code, the possibility of imposing conditional conviction on persons who have committed two or more crimes is not excluded. In such cases, the court imposes a sentence separately for each crime and determines conditional conviction when imposing the final sentence for the aggregate of crimes. Consequently, conditional conviction is applied not in respect of each crime included in the aggregate, but when the final sentence is determined for the aggregate of crimes.
Paragraph 6 of the Article under commentary lists the persons to whom conditional conviction does not apply: persons in cases of recidivism or dangerous recidivism, and persons convicted of an especially grave crime, a corruption crime, a terrorist crime, an extremist crime, a crime committed as part of a criminal group, or a crime against the sexual inviolability of minors. This restriction shall not apply to minors who have committed a crime against the sexual inviolability of a minor aged fourteen to eighteen years.
For the concepts of recidivism and dangerous recidivism, see the commentary to Article 14 of the Criminal Code.
Especially grave crimes are the crimes specified in paragraph 5 of Article 11 of the Criminal Code.
The list of corruption, terrorist and extremist crimes, as well as the concept of a criminal group, is provided in subparagraphs 29), 30), 39) and 24) of Article 3 of the Criminal Code.
According to subparagraph 42) of Article 3 of the Criminal Code, crimes against the sexual inviolability of minors include acts provided for in Article 120, “Rape”; Article 121, “Violent Acts of a Sexual Nature”; Article 122, “Sexual Intercourse or Other Acts of a Sexual Nature with a Person Under the Age of Sixteen”; Article 123, “Compulsion to Sexual Intercourse, Male Homosexual Intercourse, Female Homosexual Intercourse or Other Acts of a Sexual Nature”; Article 124, “Corruption of Young Children”; Article 134, “Involvement of a Minor in Prostitution”; Article 144, “Involvement of Minors in the Production of Erotic Content”; and paragraphs 2 and 3 of Article 312, “Production and Circulation of Materials or Items Containing Pornographic Images of Minors or Their Involvement in Entertainment Events of a Pornographic Nature”, of the Criminal Code, where such acts are committed against young children and minors.
The implementation of probationary supervision over persons conditionally convicted is regulated by Chapter 28 of the Penal Enforcement Code of the Republic of Kazakhstan (Articles 174, 175 and 176).
Thus, according to subparagraph 3) of paragraph 1 of Article 174 of the Penal Enforcement Code, when registering a conditionally convicted person subject to probationary supervision, the probation service explains the procedure for fulfilling the obligations imposed by the court, the procedure for holding the person liable for failure to fulfil them, as well as the consequences of violating the procedure for probationary supervision.
Conditionally convicted persons are required to report to the probation service on their conduct, fulfil the obligations imposed by the court, appear for registration twice a month (once a month for those residing in rural areas), and also appear when summoned by the probation service. In the event of failure to appear without valid reasons, the conditionally convicted person shall be subject to compulsory attendance (paragraph 4 of Article 174 of the Penal Enforcement Code).
To ensure proper probationary supervision and obtain information about the whereabouts of convicted persons, the probation service has the right to use electronic tracking devices, the list of which is determined by the Government of the Republic of Kazakhstan (paragraph 5 of Article 174 of the Penal Enforcement Code).
In accordance with paragraph 6 of Article 174 of the Penal Enforcement Code, if a conditionally convicted person evades probationary supervision, the probation service shall conduct initial measures to establish their whereabouts and the reasons for their evasion. If their whereabouts cannot be established, the probation service shall submit a proposal to the court to declare the person wanted and to select a preventive measure.
According to paragraph 1 of Article 175 of the Penal Enforcement Code, the probationary supervision period shall be calculated from the date on which the conditionally convicted person is registered with the probation service. Probationary supervision shall be carried out throughout the entire period established by the court judgment. Upon expiry of the probationary supervision period, the probation service shall remove the conditionally convicted person from its register (paragraph 2 of Article 175 of the Penal Enforcement Code).
As provided for in paragraph 3 of Article 175 of the Penal Enforcement Code, the running of the probationary supervision period shall be suspended from the commencement of initial search measures on the basis of a court ruling declaring the conditionally convicted person wanted and shall resume pursuant to a court ruling.
According to paragraph 15 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan “On Judicial Practice in Assigning Types of Penal Enforcement System Institutions to Persons Sentenced to Imprisonment”, when a sentence of imprisonment is imposed conditionally, the type of penal enforcement system institution shall not be designated. If a conditionally convicted person commits a new criminal offence during the probationary supervision period and is sentenced under Article 60 of the Criminal Code on the basis of the aggregate of sentences, the type of penal enforcement system institution shall be designated in accordance with the procedure provided for in Article 46 of the Criminal Code, taking into account the gravity both of the crime committed during the probationary supervision period and of the crime for which the person had previously been conditionally sentenced to imprisonment.
In accordance with paragraph 9 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan “On the Application by Courts of Legislation on Recidivism”: “If a person was conditionally convicted under Article 63 of the Criminal Code and an additional punishment was imposed on them, the periods for expungement of the criminal record in respect of the principal and additional punishments shall be calculated independently: in respect of conditional conviction, on the basis of the probationary supervision period under subparagraph 1) of paragraph 3 of Article 79 of the Criminal Code; in respect of the additional punishment, on the basis of actual service of the punishment under paragraph 5 of Article 79 of the Criminal Code. Therefore, where a person commits a new crime after the expiry of the probationary supervision period imposed under the judgment in connection with conditional conviction, but before fully serving the additional punishment, that person cannot be recognised as having a criminal record in respect of imprisonment. In such cases, when determining the type of recidivism under the latest judgment, the court shall take into account only the person's unexpunged criminal record in respect of the punishment imposed as an additional punishment, and, when imposing a sentence on the basis of the aggregate of sentences, the court shall, in compliance with the requirements of Articles 60 and 61 of the Criminal Code, add in full or in part to the punishment imposed under the latest judgment the unserved part of the additional punishment imposed under the previous judgment.”
Commentary of 2021 to the Criminal Code of the Republic of Kazakhstan by Isidor Shamilovich Borchashvili, Honoured Figure of Kazakhstan, Doctor of Law, Professor, Academician of the Kazakhstan National Academy of Natural Sciences, 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 reform of the law enforcement system under the Security Council of the Republic of Kazakhstan, Honoured Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.
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