Commentary on Article 72. Conditional Early Release from Serving a Sentence of the Criminal Code of the Republic of Kazakhstan

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1. A person serving a sentence of restriction of liberty or imprisonment may be conditionally released from serving the sentence by a court after actually serving the periods specified in Parts Three, Four and Five of this Article, if the court determines that such person does not need to serve the full sentence imposed in order to be rehabilitated.

A person serving a sentence of restriction of liberty or imprisonment, after actually serving the periods specified in Parts Three, Four and Five of this Article, shall be subject to conditional early release if such person has fully compensated for the damage caused by the criminal offence and has no gross violations of the established procedure for serving the sentence.

A person serving a sentence of imprisonment imposed for a terrorist or extremist offence that did not result in the death of persons and was not associated with the commission of an especially grave crime may be conditionally released by a court after actually serving the periods specified in Parts Three, Four and Five of this Article, provided that such person actively assists in the prevention, detection or investigation of terrorist or extremist offences and in exposing members of a terrorist or extremist group.

Pregnant women, women with young children, men raising young children alone, women aged fifty-eight years or older, men aged sixty-three years or older, and persons with Group I or Group II disabilities who are serving imprisonment for a grave or especially grave corruption offence may be conditionally released by a court after actually serving the periods specified in Parts Three and Five of this Article.

A person serving imprisonment for a grave or especially grave corruption offence who has fulfilled all the conditions of a procedural cooperation agreement may be conditionally released by a court after actually serving the periods specified in Parts Three and Five of this Article.

In this case, the person may be fully or partially released from serving an additional type of punishment.

2. A person conditionally released from serving a sentence of imprisonment shall be placed under probation supervision by the court for the remaining unserved part of the sentence in accordance with the rules set out in Part Two of Article 44 of this Code. When conditional early release is applied, the person shall also be assigned the obligations provided for by the Criminal Executive Code of the Republic of Kazakhstan.

Probation supervision shall not be established in the case of conditional early release of a foreign national or stateless person who has been sentenced by a court to expulsion from the Republic of Kazakhstan as an additional type of punishment.

3. Conditional early release may be applied only after the convicted person has actually served:

1) at least one-third of the sentence imposed for a criminal offence of minor or medium gravity;

2) at least one-half of the sentence imposed for a grave criminal offence;

3) at least two-thirds of the sentence imposed for an especially grave criminal offence;

3-1) at least two-thirds of the remaining unserved part of the sentence if previously granted conditional early release was revoked on the grounds provided for in paragraphs 1) and 2) of Part Seven of this Article;

4) at least three-quarters of the sentence if previously granted conditional early release was revoked on the ground provided for in paragraph 3) of Part Seven of this Article;

5) at least one-third of the sentence imposed for a grave criminal offence, or at least one-half of the sentence imposed for an especially grave criminal offence, if the convicted person has fulfilled all the conditions of the procedural agreement.

4. Conditional early release from serving a sentence may be applied to pregnant women, women with young children, men raising young children alone, women aged fifty-eight years or older, men aged sixty-three years or older, and persons with Group I or Group II disabilities after they have actually served:

1) at least one-quarter of the sentence imposed by the court for a criminal offence of minor or medium gravity;

2) at least one-third of the sentence imposed by the court for a grave criminal offence;

3) at least one-half of the sentence imposed by the court for an especially grave criminal offence not involving an encroachment on human life, as well as where previously granted conditional early release was revoked on the grounds provided for in paragraphs 1) and 2) of Part Seven of this Article;

4) at least two-thirds of the sentence imposed by the court for an especially grave criminal offence involving an encroachment on human life, as well as where previously granted conditional early release was revoked on the ground provided for in paragraph 3) of Part Seven of this Article;

5) at least one-quarter of the sentence imposed for a grave criminal offence, or at least one-third of the sentence imposed for an especially grave criminal offence, if the convicted person has fulfilled all the conditions of the procedural agreement.

6) The actual term of imprisonment served by the convicted person may not be less than six months.

7) A person serving a sentence of life imprisonment imposed by a court may be conditionally released if the court determines that such person does not need to continue serving this sentence and has actually served at least twenty-five years of imprisonment. If a person serving a sentence of life imprisonment imposed by a court has fulfilled all the conditions of the procedural agreement, such person may be conditionally released after actually serving at least fifteen years of imprisonment.

5. If, during the remaining unserved part of the sentence, a person to whom conditional early release has been applied commits:

1) two or more administrative offences for which administrative penalties have been imposed on such person, or evades, without a valid reason, the performance of obligations imposed upon such person in connection with conditional early release more than twice, or, without a valid reason, fails to register at the selected place of residence within five working days after release from places of deprivation of liberty, the court, upon the submission of an authorised state body, may rule to revoke conditional early release and enforce the remaining unserved part of the sentence;

2) a crime through negligence, or, in cases involving the commission of a criminal misdemeanour or an intentional criminal offence of minor gravity by a pregnant woman, a woman with young children, a man raising young children alone, a woman aged fifty-eight years or older, a man aged sixty-three years or older, or a person with a Group I or Group II disability, the question of revoking or maintaining conditional early release shall be decided by the court when imposing punishment for the new criminal offence. If the court revokes conditional early release, the sentence shall be imposed in accordance with the rules for sentencing on the aggregate of sentences;

3) an intentional criminal offence, except for the cases specified in paragraph 2) of this Part, the court shall impose a sentence on such person in accordance with the rules for sentencing on the aggregate of sentences.

6. Conditional early release shall not apply to persons:

1) whose death sentence has been commuted to imprisonment by way of pardon;

2) convicted of a terrorist or extremist offence that resulted in the death of persons or was associated with the commission of an especially grave crime;

7. persons convicted of a grave or especially grave corruption offence, except for:

1) cases involving the commission of such offences by pregnant women, women with young children, men raising young children alone, women aged fifty-eight years or older, men aged sixty-three years or older, and persons with a Group I or Group II disability;

2) convicted persons who have fulfilled all the conditions of a procedural cooperation agreement;

3) persons convicted of a crime against the sexual inviolability of minors, except where such crime was committed by a person who had not attained the age of majority against a minor aged fourteen to eighteen years.

The imposition of punishment and its subsequent execution constitute the principal form of implementation of criminal liability. Legislation and judicial practice proceed from the premise that the execution of a sentence imposed by a court makes it possible to fully implement the principles of justice and humanism and to ensure the achievement of the purposes of punishment provided for by law (Part 2 of Article 39 of the Criminal Code).

However, criminal law provides the court with the possibility of not imposing punishment if the objectives of criminal liability can be achieved without its implementation or can be realised through measures of a criminal-law nature other than punishment. It is believed that the legislator cannot ignore life circumstances in which the implementation of punishment conflicts with the principles of justice, humanism and expediency.

A person who has committed a crime may be fully or partially released from punishment on the grounds provided for by criminal law. In such cases, this measure constitutes a particular manifestation of the principle of humanism, the requirement of individualisation of criminal liability and the reasonable economy of measures of state coercion. These principles are embodied in a number of Articles of the Criminal Code and the Criminal Procedure Code.

Exemption from criminal liability and exemption from punishment have both common features and significant differences.

Their common feature is that in both cases the guilty person ceases to be subjected to measures of state coercion provided for by the Criminal Code. Criminal liability and criminal punishment may be applied only to a guilty person, that is, where the elements of a criminal offence are present in that person's actions. Both exemption from criminal liability and exemption from criminal punishment are possible only under specific conditions established by law.

Criminal law provides for a number of significant differences between these concepts:

exemption from criminal liability is primarily associated with the commission of a criminal misdemeanour or a criminal offence of minor or medium gravity;

Exemption from punishment is not strictly linked to this characteristic;

a person may be exempted from criminal liability at any stage of criminal proceedings (as an accused, defendant or convicted person); exemption from punishment is possible only in respect of a person against whom a conviction imposing punishment has been delivered;

in accordance with criminal procedure legislation, a person may be exempted from criminal liability not only by a court but also by an investigator or an inquiry body with the consent of the prosecutor; a person may be exempted from punishment only by a court decision.

The same circumstances may constitute grounds both for exemption from criminal liability and for exemption from punishment — everything depends on the stage of the proceedings. Thus, when a legislative body adopts an amnesty resolution, criminal cases at the investigation stage may be terminated, and a person brought to criminal liability may be exempted from it. Persons serving sentences may, subject to the conditions specified in the amnesty act, be released from punishment.

Conditional early release, in its substance, constitutes a type of exemption from punishment at the stage of serving the sentence. Conditional early release is one of the manifestations of the principle of humanism. The essence of this institution consists in releasing a person from further serving a sentence where the conditions established by law are present. In the event of conditional early release from serving a sentence, the person may also be fully or partially released from serving an additional type of punishment. Conditional early release from serving a sentence is carried out where the circumstances specified by law exist and subject to certain conditions that the released person must comply with during the unserved part of the sentence. It may be said that the unserved part of the sentence constitutes a specific probationary period for a person conditionally released early, while the existence of the institution of conditional early release from punishment in legislation serves as an important incentive for the convicted person to reform.

The institution of conditional early release is regulated by the criminal, criminal executive and criminal procedure legislation of the Republic of Kazakhstan. In this sense, it constitutes a comprehensive legal institution; however, it has a clearly expressed criminal-law nature. Pursuant to Part 1 of Article 72 of the Criminal Code, a person serving a sentence of restriction of liberty or imprisonment may be conditionally released by a court after actually serving the periods specified in Parts 3, 4 and 5 of the commented Article, if the court determines that such person does not need to serve the full sentence imposed in order to be rehabilitated.

A person serving a sentence of restriction of liberty or imprisonment, after actually serving the periods specified in Parts 3, 4 and 5 of Article 72, shall be subject to conditional early release if such person has fully compensated for the damage caused by the criminal offence and has no gross violations of the established procedure for serving the sentence.

For the purposes of Article 72 of the Criminal Code, damage caused by a criminal offence and subject to compensation includes both damage directly caused by the criminal offence and other amounts recovered from the convicted person pursuant to a judgment or court decision.

The amount of damage caused by the criminal offence and subject to compensation by the convicted person is established both by the court judgment and by a legally effective decision adopted in civil proceedings arising from the criminal case.

A person serving a sentence of imprisonment imposed for a terrorist or extremist offence that did not result in the death of persons and was not associated with the commission of an especially grave crime may be conditionally released by a court after actually serving the periods specified in Parts 3, 4 and 5 of Article 72, provided that such person actively assists in the prevention, detection or investigation of terrorist and extremist offences and in exposing members of a terrorist or extremist group.

Conditional early release from punishment applies only to persons serving sentences of restriction of liberty and imprisonment.

Conditional early release from punishment is applied by the court at the place where the convicted person serves the sentence, upon the submission of the body responsible for the execution of punishment, that is, the institution in which the convicted person serves the sentence.

The conditional nature of this type of release from serving a sentence consists in establishing supervision over the conduct of the person conditionally released early and over the fulfilment of the obligations imposed upon such person, as well as in the possibility of revoking conditional early release if the requirements imposed on the person conditionally released early are violated.

According to paragraph 1 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated 2 October 2015, “On Judicial Practice in Conditional Early Release from Serving a Sentence, Replacement of the Unserved Part of a Sentence with a More Lenient Type of Punishment and Reduction of the Term of the Sentence Imposed”, conditional early release from serving a sentence, replacement of the unserved part of a sentence with a more lenient type of punishment, or reduction of the term of the sentence imposed constitute comprehensive legal institutions. Issues concerning their application are resolved in accordance with the procedure established by Articles 72, 73, 86 and 87 of the Criminal Code of the Republic of Kazakhstan, Articles 476, 477, 478 and 480 of the Criminal Procedure Code of the Republic of Kazakhstan, and Articles 161, 162 and 169 of the Criminal Executive Code of the Republic of Kazakhstan.

According to paragraph 2 of the aforementioned Regulatory Resolution, paragraph 1 of Part 1 of Article 72 of the Criminal Code establishes the possibility for a court to apply conditional early release to a convicted person who has served the part of the sentence imposed by the court's judgment prescribed by law and who does not need to serve the entire sentence. Paragraphs 2, 3, 4 and 5 of Part 1 of Article 72 of the Criminal Code provide for special conditions for the application of conditional early release.

If the court establishes that, in addition to actually serving the period of the sentence prescribed by law, the convicted person has had no gross violations of the regime for serving the sentence and has fully compensated for the damage caused by the criminal offence, then, in accordance with paragraph 2 of Part 1 of Article 72 of the Criminal Code, such person shall be subject to conditional early release without any additional conditions.

If at least one of these conditions is absent, the issue of conditional early release of the convicted person shall be decided by the court in accordance with the rules established in paragraph 1 of Part 1 of Article 72 of the Criminal Code.

A convicted person against whom no civil claims have been brought for compensation of material damage caused by the criminal offence shall, in the absence of gross violations, be subject to mandatory conditional early release upon serving the prescribed part of the sentence.

Procedural costs recovered from the convicted person pursuant to a court judgment are not included in the damage subject to compensation.

The application of conditional early release from punishment is possible where several conditions are met. The first condition is that the convicted person is serving a sentence of restriction of liberty or imprisonment. The second condition consists in the existence of a formal criterion for the possibility of release — serving the period of the sentence imposed prescribed by law. This period is determined by the legislator taking into account the category of the criminal offence.

Conditional early release may be applied only after the convicted person has actually served:

at least one-third of the sentence imposed for a criminal offence of minor or medium gravity;

at least one-half of the sentence imposed for grave criminal offences;

at least two-thirds of the sentence imposed for especially grave criminal offences;

at least three-quarters of the sentence if previously granted conditional early release was revoked on the ground provided for in paragraph 3) of Part 7 of Article 72 of the Criminal Code;

at least one-third of the sentence imposed for a grave criminal offence, or at least one-half of the sentence imposed for an especially grave criminal offence, if the convicted person has fulfilled all the conditions of the procedural agreement (Part 3 of the commented Article).

Another mandatory condition for conditional early release is full compensation by the convicted person for the damage caused by the criminal offence. Finally, the convicted person must have no gross violations of the established procedure for serving the sentence.

According to Part 2 of Article 130 of the Criminal Executive Code, gross violations of the established procedure for serving a sentence include:

refusal, without valid reasons, to perform work on the improvement of the institution and the improvement of living conditions;

threats against representatives of the institution's administration, insulting them, disobeying them, including disobedience accompanied by intentional self-injury for the purpose of violating the regime for serving the sentence;

transferring (receiving), manufacturing or storing items, documents, things, products, substances or foodstuffs not provided for by the internal regulations of institutions;

evading mandatory and compulsory treatment ordered by a court;

refusal to perform paid work provided by the institution's administration in accordance with Article 119 of the Criminal Executive Code of the Republic of Kazakhstan;

unauthorised departure from the territory of a minimum-security institution and a work facility;

failure to return to the institution within the prescribed period by a convicted person who has been permitted a short-term leave outside the institution, except in the cases provided for in Part 8 of Article 113 of the Criminal Executive Code of the Republic of Kazakhstan;

consumption of alcohol, narcotic drugs, psychotropic substances or other intoxicating substances;

playing cards, as well as other games for the purpose of obtaining material or other benefits;

committing acts of a sexual nature;

minor hooliganism;

organising or actively participating in groups of convicted persons aimed at committing violations specified in subparagraphs 1)–11) of Part 2 of Article 130 of the Criminal Executive Code of the Republic of Kazakhstan;

repeated commission of a similar violation of the established procedure for serving a sentence for which the convicted person was subjected, within six months, to a disciplinary penalty in the form of placement in a disciplinary isolation unit or transfer to a single cell.

Part 4 of the commented Article establishes reduced periods of actual service of the sentence imposed by the court for certain categories of persons. Thus, conditional early release from serving a sentence may be applied to pregnant women, women with young children, men raising young children alone, women aged fifty-eight years or older, men aged sixty-three years or older, and persons with Group I or Group II disabilities after they have actually served:

at least one-quarter of the sentence imposed by the court for a criminal offence of minor or medium gravity;

at least one-third of the sentence imposed by the court for a grave criminal offence;

at least one-half of the sentence imposed by the court for an especially grave criminal offence not involving an encroachment on human life, as well as where previously granted conditional early release was revoked on the grounds provided for in paragraphs 1) and 2) of Part 7 of the commented Article;

at least two-thirds of the sentence imposed by the court for an especially grave criminal offence involving an encroachment on human life, as well as where previously granted conditional early release was revoked on the ground provided for in paragraph 3) of Part 7 of the commented Article;

at least one-quarter of the sentence imposed for a grave criminal offence, or at least one-third of the sentence imposed for an especially grave criminal offence, if the convicted person has fulfilled all the conditions of the procedural agreement.

For information on when a person is considered to have fulfilled all the conditions of a procedural agreement, see the commentary to Article 67 of the Criminal Code.

If a convicted person is serving a sentence imposed on the aggregate of sentences for criminal offences, some of which were committed before reaching the age of eighteen and others after reaching the age of majority, the period of service of the sentence giving grounds for the application of conditional early release shall be calculated in accordance with Article 86 of the Criminal Code.

Upon the convicted person serving the part of the sentence specified in Part 3 of Article 72 of the Criminal Code, the institution or body executing the sentence is obliged to notify the convicted person in writing, within five days, of the commencement of the right to submit a petition to the court for consideration of the issue of conditional early release from serving the sentence.

The petition of a convicted person for conditional early release from serving a sentence shall be accompanied by information characterising the person's identity, conduct, and attitude towards work and education throughout the period of serving the sentence (Part 3 of Article 162 of the Criminal Executive Code).

According to Part 9 of Article 162 of the Criminal Executive Code, within ten days after the convicted person submits a petition for conditional early release from serving a sentence, the administration of the institution or the body executing the sentence is obliged to forward it to the court together with the materials specified in Part 3 of Article 162 of the Criminal Executive Code and the convicted person's personal file, and to notify the prosecutor in writing in compliance with the provisions of Part 10 of Article 162 of the Criminal Executive Code.

When considering a petition for conditional early release from punishment, the court is entitled to conditionally release the convicted person if the conditions provided for by the Criminal Code of the Republic of Kazakhstan are met, or to refuse such release.

In the event that the court refuses the petition, a repeated petition on any of the specified grounds may be submitted no earlier than six months from the date of issuance of the ruling refusing the petition. At the same time, the court's refusal to replace the unserved part of the sentence with a more lenient punishment does not prevent the submission, before the expiry of the six-month period, of a petition for conditional early release, just as the court's refusal of conditional early release does not prevent the submission of a petition for replacement of the unserved part of the sentence with a more lenient punishment (Part 10 of Article 162 of the Criminal Executive Code).

When deciding whether to accept for consideration a petition by a convicted person for conditional early release, the court must verify whether the petition complies with the requirements established by law (Parts 1, 3 and 9 of Article 162 of the Criminal Executive Code and Part 2 of Article 480 of the Criminal Procedure Code), and whether the submitted materials contain information characterising the convicted person's conduct and attitude towards work and education throughout the entire period of serving the sentence, whether copies of the documents on the basis of which the convicted person is serving the sentence are available, as well as information concerning the service of the prescribed part of the sentence.

If the submitted materials do not contain sufficient information for consideration of the petition and such information cannot be supplemented during the court hearing, the judge, during the preparation for consideration of the petition, shall issue a ruling returning the materials for appropriate completion.

According to paragraph 9 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan “On Judicial Practice in Conditional Early Release from Serving a Sentence, Replacement of the Unserved Part of a Sentence with a More Lenient Type of Punishment and Reduction of the Term of the Sentence Imposed”, the convicted person's actual service of the part of the sentence prescribed by law, in accordance with Parts Three, Four and Six of Article 72, Part Two of Article 73, Part One of Article 86 and Part One of Article 87 of the Criminal Code, cannot serve as an unconditional ground for conditional early release or replacement of the unserved part of the sentence with a more lenient type of punishment.

When deciding on conditional early release, courts must ensure an individualised approach and, in each specific case, determine whether the information contained in the petition and other materials is sufficient for conditional early release from serving the sentence, that is, assess positive changes in the convicted person's conduct.

When assessing the conduct of a convicted person, courts must take into account compliance with internal regulations, fulfilment of the requirements of the administration of the penal enforcement institution, participation in educational activities and the public life of the institution, incentives and disciplinary penalties, maintenance of relations with relatives and other convicted persons, positive or negative attitude towards education, compensation for damage, transfer to less restrictive conditions of detention, and other circumstances that may indicate the convicted person's rehabilitation.

The court's conclusion regarding the rehabilitation of a convicted person must be based on a comprehensive assessment of information about the person's conduct not only during the period immediately preceding consideration of the petition but throughout the entire period of detention in the institution, including the period of pre-trial detention before the judgment was delivered. If the court concludes that the person serving the sentence has reformed, this must also lead to the conclusion that the person does not need to serve the full sentence imposed by the court in order to be rehabilitated.

The reliability of the requirements provided for in Article 130 of the Criminal Executive Code is established on the basis of a thorough examination by the court of the materials contained in the personal file.

Disciplinary penalties imposed on a convicted person throughout the entire period of serving the sentence, except for those that have been withdrawn or expunged, shall be assessed by the court together with other information characterising the person, taking into account the nature of the violations committed.

When examining the degree of rehabilitation of a convicted person, it is necessary to examine each instance of disciplinary punishment imposed on such person to determine whether the violations constitute gross violations.

Thus, it may be concluded that the existence of a substantive ground for release constitutes an independent condition for conditional early release. The fact is that conditional early release may be granted not to every convicted person who has served a certain part of the sentence, but only to a convicted person who has ceased to pose a danger to society and in respect of whom further implementation of the punishment is no longer expedient. Therefore, the law links the possibility of release to the circumstance that the person does not need to serve the full sentence imposed by the court in order to be rehabilitated. The absence of such a need to continue serving the sentence must be established by the court.

Issues concerning conditional early release from serving sentences imposed on minors are regulated by Article 86 of the Criminal Code.

A court's refusal to grant conditional early release from serving a sentence may take place only where the grounds specified by law exist. A court is not entitled to refuse conditional early release from serving a sentence on grounds not specified by law, such as the existence of a previous conviction, the leniency of the punishment imposed, the convicted person's failure to admit guilt, the short duration of their stay in one of the penal enforcement institutions, and so forth.

The Supreme Court of the Republic of Kazakhstan also draws attention to this circumstance. Thus, paragraph 12 of the Regulatory Resolution “On Judicial Practice in Conditional Early Release from Serving a Sentence, Replacement of the Unserved Part of a Sentence with a More Lenient Type of Punishment and Reduction of the Term of the Sentence Imposed” states: “There must be no cases of either the improper application of conditional early release, ... or an unjustified refusal to release a convicted person from further serving a sentence ... in respect of convicted persons who do not need to serve the full term of the sentence imposed.

Courts are not entitled to refuse conditional early release on grounds not provided for by law, such as the leniency of the punishment imposed, the short duration of the convicted person's stay in the particular institution, the convicted person's denial of guilt, the existence of a previous conviction, serving a sentence for committing a grave or especially grave criminal offence, and the like.”

If the court decides to grant conditional early release from serving a sentence, the convicted person shall be released from custody after the ruling enters into legal force. The period of the unserved part of the sentence shall be calculated from the moment of the convicted person's actual release. A copy of the ruling must be immediately sent by the court to the institution or body executing the sentence, as well as to the court that delivered the judgment (paragraph 13 of the Regulatory Resolution of the Supreme Court).

If, together with the principal punishment, the court has imposed an additional punishment, when considering the issue of conditional early release from the principal punishment, the courts must also consider the possibility of fully or partially releasing the convicted person from the additional punishment.

If the additional punishment has been executed (a fine has been recovered, or the person has been deprived of a special, military or honorary title, class rank or state awards), the issue of releasing the convicted person from that additional punishment shall not be considered. In cases of partial execution of an additional punishment (part of a fine has been recovered), the court may decide on partial or full release from serving the remaining part of the additional punishment. Where an additional punishment (for example, deprivation of the right to hold certain positions or engage in certain activities) has not been executed, the court may release the convicted person from serving it in whole or in part. The court's decision on this issue must be set out in the operative part of the ruling.

When calculating the period of the sentence actually served by the convicted person, the period of detention before the judgment was delivered and entered into legal force shall be included. If a decision to credit the aforementioned period towards the total term of the sentence is not contained in the judgment or in a court ruling issued in the course of execution of the judgment, the court shall order such credit in its ruling when applying conditional early release.

Establishing a mandatory period of service of a sentence before the occurrence of one of the conditions making conditional early release possible is necessary, firstly, to ensure that the convicted person undergoes at least some of the restrictions associated with serving the sentence, even if not throughout the entire term imposed, thereby ensuring compliance with the principle of justice; and, secondly, to allow the convicted person, during the period served, to assess their own conduct and demonstrate that they do not need to serve the full sentence imposed by the court in order to be rehabilitated.

In cases where the punishment imposed on a convicted person has been mitigated by an amnesty or pardon act or by a ruling of a higher court, the period actually served for the purposes of applying conditional early release from punishment must be calculated by the court on the basis of the term of punishment established by the amnesty or pardon act or by the ruling of the higher court.

If a person has been convicted on the aggregate of criminal offences or on the aggregate of sentences for committing criminal offences of different categories of gravity, when deciding on conditional early release from serving a sentence or replacement of the unserved part of a sentence with a more lenient type of punishment, the court must calculate the period after the actual service of which conditional early release or replacement of the unserved part of the sentence with a more lenient type of punishment may be applied in accordance with the rules provided for in Part 3 of Article 72, Part 2 of Article 73 and Part 1 of Article 86 of the Criminal Code, with reference to the most serious criminal offence included in the aggregate.

In cases where the damage caused by the criminal offence (material damage and moral harm) has not been compensated under a civil claim due to objective reasons, such as the convicted person's disability, the existence of illnesses preventing employment, or the limited number of available jobs in the penal institution, and so forth, the court is not entitled to refuse conditional early release from serving a sentence or replacement of the unserved part of the sentence with a more lenient type of punishment solely on this ground.

At the same time, established facts of a convicted person's evasion of compensation for damage caused by the criminal offence (by concealing property or income, evading work, and so forth), together with other circumstances, may constitute an obstacle to conditional early release or replacement of the unserved part of the sentence with a more lenient type of punishment.

The actual period of imprisonment served by the convicted person, according to Part 5 of the commented Article, may not be less than six months. Establishing such a requirement is justified, particularly in relation to persons serving short-term imprisonment sentences, since the law enforcement authority requires a certain period of time to assess whether the convicted person's conduct meets the requirement that the person does not need to serve the full sentence imposed by the court in order to be rehabilitated.

According to Part 2 of the commented Article, a person conditionally released from serving a sentence of imprisonment shall be placed under probation supervision by the court for the remaining unserved part of the sentence in accordance with Part 2 of Article 44 of the Criminal Code.

Probation supervision is the activity of authorised bodies aimed at monitoring the fulfilment of obligations imposed by law and by the court on persons registered with them (paragraph 9) of Article 3 of the Criminal Executive Code). According to Part 2 of Article 44 of the Criminal Code, probation supervision is carried out by an authorised state body and, pursuant to a court decision, includes the convicted person's fulfilment of the following obligations: not to change their permanent place of residence, work 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.

When conditional early release is applied, the person shall also be assigned the obligations provided for by the Criminal Executive Code of the Republic of Kazakhstan.

Thus, according to Part 2 of Article 21 of the Criminal Executive Code, a person in respect of whom probation supervision has been established is obliged to:

1. report to the probation service within ten days from the date on which the judgment or court ruling enters into legal force for registration;

2) comply with the conditions and procedure for serving the sentence and other criminal-law measures established by the Criminal Executive Code;

3. appear before the probation service to participate in a preventive interview;

4) notify the probation service in writing of any change in place of employment and/or residence.

In accordance with Part 8 of Article 169 of the Criminal Executive Code, a conditionally released person is obliged to:

1. register with the internal affairs bodies at the place of residence within five working days from the date of release from the institution;

2) appear at least once a month before the internal affairs bodies and the probation service, respectively, to report on their conduct and the social and legal assistance received;

3. not leave their place of residence during the hours determined by the internal affairs bodies;

4) not change their permanent place of residence, work or study without written notification to the internal affairs bodies;

5) not visit places designated by the internal affairs bodies during free time outside working and study hours;

6) not travel to other localities without written permission from the internal affairs bodies;

6-1) not leave the territory of the Republic of Kazakhstan until the principal punishment has been fully served and the probation supervision period has expired;

6-2) not consume alcoholic beverages, narcotic drugs or psychotropic substances, or their analogues, for non-medical purposes;

7) take measures to compensate for damage caused to the health or property of the victim, or material damage caused to the state;

8) provide explanations and other documents necessary for monitoring the conduct of the conditionally released person at the request of the internal affairs bodies;

9) submit, in accordance with the procedure established by the tax legislation of the Republic of Kazakhstan, a declaration of income and property subject to taxation and located both within the territory of the Republic of Kazakhstan and abroad to the state revenue authority at the place of residence. The aforementioned declaration shall be submitted before the expiry of the remaining unserved part of the sentence.

At the same time, such persons shall submit to the internal affairs body a certificate issued by the state revenue authority confirming receipt of the declaration by the latter.

In the event that a conditionally released person evades probation supervision, the internal affairs bodies shall conduct initial measures to establish the person's whereabouts and the reasons for evasion. If the whereabouts of the conditionally released person are established, the internal affairs bodies shall submit to the court a motion to declare the person wanted and to select a preventive measure.

According to paragraph 2 of Part 2 of the commented Article, probation supervision shall not be established in the case of conditional early release of a foreign national or stateless person who has been sentenced by a court to expulsion from the Republic of Kazakhstan as an additional type of punishment. The aforementioned Regulatory Resolution of the Supreme Court also states that “In accordance with Part 2 of Article 72 of the Criminal Code, probation supervision shall not be established in the case of conditional early release of a foreign national or stateless person who has been sentenced by a court judgment to expulsion from the Republic of Kazakhstan as an additional punishment.”

Within the meaning of Part 2 of Article 72 of the Criminal Code, probation supervision shall not be established in the case of conditional early release of a person from a sentence of restriction of liberty.

For foreign nationals and stateless persons, the unserved part of a sentence may be replaced only by a fine, with or without expulsion from the Republic of Kazakhstan.

A person serving a sentence of life imprisonment may be conditionally released by a court if the court determines that such person does not need to continue serving this sentence and has actually served at least twenty-five years of imprisonment.

According to Part 6 of the commented Article, if a person serving a sentence of life imprisonment has fulfilled all the conditions of a procedural agreement, such person may be conditionally released after actually serving at least fifteen years of imprisonment.

In accordance with Article 6 of the Criminal Code, the question of whether conditional early release from punishment may or may not be applied must be decided in accordance with the law in force at the time of application of conditional early release, provided that this does not worsen the convicted person's position. In the event of a change in the law that worsens the person's position, the law in force at the time the judgment was delivered shall apply.

Revocation of conditional early release means the return of the convicted person to a place of serving the same type of punishment from which such person was conditionally released, for the purpose of enforcing the remaining unserved part of the sentence.

Paragraph 1) of Part 7 of Article 72 of the Criminal Code provides for the possibility of revoking conditional early release if, during the remaining unserved part of the sentence, the convicted person:

1. commits two or more administrative offences for which administrative penalties have been imposed on such person;

2) evades, without a valid reason, the fulfilment of obligations imposed on such person in connection with conditional early release more than twice;

3. fails, without a valid reason, to register at the selected place of residence within five working days after release from places of deprivation of liberty.

In any of the aforementioned cases, the court may, upon the submission of an authorised state body, issue a ruling revoking conditional early release and ordering the enforcement of the remaining unserved part of the sentence. It should be borne in mind, firstly, that this paragraph does not oblige the court to revoke conditional early release, but grants it the right to do so where the circumstances specified in paragraph 1) of Part 7 of Article 72 of the Criminal Code exist. Secondly, revocation of conditional early release on the grounds specified in paragraph 1) of Part 7 of Article 72 of the Criminal Code is possible only upon the submission of an authorised state body.

If conditional early release is revoked on the basis of paragraph 1) of Part 7 of Article 72 of the Criminal Code, the convicted person shall serve the unserved part of the imprisonment sentence in the penal enforcement institution from which such person was conditionally released.

In accordance with paragraph 2) of Part 7 of Article 72 of the Criminal Code, in cases involving the commission of a crime through negligence, as well as the commission of a criminal misdemeanour or an intentional criminal offence of minor gravity by a pregnant woman, a woman with young children, a man raising young children alone, a woman aged fifty-eight years or older, a man aged sixty-three years or older, or a person with a Group I or Group II disability, the issue of revoking or maintaining conditional early release shall be decided by the court when imposing punishment for the new criminal offence.

This provision grants the court the right, but does not oblige it, to revoke conditional early release even where the circumstances specified by law exist.

If conditional early release is revoked, the court shall impose punishment for the new criminal offence in accordance with the rules established by Article 60 of the Criminal Code, that is, the punishment imposed for the new criminal offence shall be combined, in whole or in part, with the unserved part of the sentence under the previous judgment (the part of the sentence from which the person was conditionally released while serving the sentence under the previous judgment).

If the court does not revoke conditional early release but maintains it, the conditionally released person shall be sentenced for the commission of the new criminal offence, which such person will serve while remaining conditionally released from punishment for the first criminal offence. In this case, after the new judgment is delivered, the convicted person will actually serve only the punishment imposed under the new judgment. The punishments under the old and new judgments shall not be aggregated.

Paragraph 17 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan “On Judicial Practice in Conditional Early Release from Serving a Sentence, Replacement of the Unserved Part of a Sentence with a More Lenient Type of Punishment and Reduction of the Term of the Sentence Imposed” states that gross evasion of obligations imposed by the court on a convicted person, as provided for in Part 2 of Article 44 of the Criminal Code and Part 8 of Article 169 of the Criminal Executive Code, shall be understood as repeated failure to fulfil such obligations after the body monitoring the convicted person's conduct has issued written confirmation of the possibility of revoking conditional early release. At the same time, the question of whether evasion of the obligations imposed by the court constitutes gross evasion must be decided in each specific case, taking into account its duration, the reasons for the evasion and other circumstances.

Failure by a conditionally released person to fulfil obligations imposed by the court for objective reasons that prevented their fulfilment, for example, due to illness, does not constitute grounds for revoking conditional early release.

Upon revocation of conditional early release, the remaining unserved part of not only the principal punishment but also the additional punishment shall be enforced if the person was conditionally released from serving the additional punishment.

In accordance with paragraph 3) of Part 7 of the commented Article, the commission by a conditionally released person, during the remaining unserved part of the sentence imposed by the court, of a new intentional criminal offence, except for the cases specified in paragraph 2) of Part 7 of the commented Article, entails mandatory revocation of conditional early release and imposition of punishment for the new criminal offence in accordance with the rules provided for in Article 60 of the Criminal Code, that is, the rules for imposing punishment on the aggregate of sentences.

It should be noted that revocation of conditional early release of a convicted person in accordance with Part 7 of Article 72 of the Criminal Code cannot serve as grounds for refusing to apply conditional early release from serving a sentence to such person again. In such cases, the court must proceed not only from the fact that conditional early release was revoked in respect of the convicted person but also take into account, in their entirety, all information concerning the person's identity, the period spent in the correctional institution after returning to it, the person's conduct, attitude towards work, and so forth.

When considering a petition submitted by the Prosecutor General of the Republic of Kazakhstan or their deputy in accordance with Part 3 of Article 621 of the Criminal Procedure Code for reduction of the unserved part of a sentence, the courts must establish compliance with Part 2 of Article 618 of the Criminal Procedure Code when concluding a procedural cooperation agreement with the convicted person, whether the convicted person assisted in the detection of crimes covered by the subject matter of the procedural cooperation agreement, in exposing persons who committed especially grave crimes, crimes as part of a criminal group, as well as extremist and terrorist crimes, and whether a conviction against the guilty persons has entered into legal force. In this case, the unserved part of the sentence may be reduced by the court by no more than one-half.

When a court considers a petition for conditional early release from serving a sentence or replacement of the unserved part of a sentence with a more lenient type of punishment in respect of a foreign national who does not have a permanent place of residence in the territory of the Republic of Kazakhstan, in addition to other information characterising the convicted person, the court must also assess information indicating the existence or absence of guarantees, provided by the convicted person or the foreign state, for enforcement of the judgment in respect of the civil claim, as well as an agreement reached on the transfer of the convicted person under the conditions provided for by international treaties of the Republic of Kazakhstan for the purpose of monitoring the convicted person's conduct and the possibility of establishing probation supervision to be carried out during conditional early release in the territory of the foreign state.

Persons whose imprisonment imposed by a court judgment has been replaced with a more lenient type of punishment may subsequently, on the basis of Article 72 of the Criminal Code, be conditionally released from serving the new, more lenient type of punishment.

Unlike conditional early release, replacement of the unserved part of imprisonment with a more lenient type of punishment cannot be revoked due to the convicted person's improper conduct.

According to Part 8 of the commented Article, conditional early release shall not apply to persons:

1) whose death sentence has been commuted to imprisonment by way of pardon;

2) convicted of a terrorist or extremist offence that resulted in the death of persons or was associated with the commission of an especially grave crime;

3) convicted of a grave or especially grave corruption offence, except for:

cases involving the commission of such offences by pregnant women, women with young children, men raising young children alone, women aged fifty-eight years or older, men aged sixty-three years or older, and persons with a Group I or Group II disability;

convicted persons who have fulfilled all the conditions of a procedural cooperation agreement;

4) convicted of crimes against the sexual inviolability of minors, except where such crime was committed by a person who had not attained the age of majority against a minor aged fourteen to eighteen years.

An exhaustive list of terrorist and extremist offences is established in paragraphs 30) and 39) of Article 3 of the Criminal Code (see the commentary to Article 3 of the Criminal Code).

According to Part 5 of Article 11 of the Criminal Code, especially grave crimes are acts for which the sanction of the Article or Part of the Article of the Special Part of the Criminal Code provides for punishment in the form of imprisonment for a term exceeding twelve years, life imprisonment or the death penalty.

In accordance with paragraph 42) of Article 3 of the Criminal Code, crimes against the sexual inviolability of minors include acts provided for in Articles 120, 121, 122, 123, 124, 134 and 144, Parts 2 and 3 of Article 312 of the Criminal Code, committed against young children and minors.

Grave corruption offences include acts provided for in paragraph 2) of Part 3 of Article 189; paragraph 2) of Part 3 of Article 190; paragraph 1) of Part 3 of Article 218; paragraph 1) of Part 3 of Article 234; paragraph 2) of Part 3 of Article 249; Part 4 of Article 361; paragraph 3) of Part 4 of Article 362; Parts 3 and 4 of Article 365; Parts 1-1, 2 and 3 of Article 366; Parts 2 and 3 of Article 367; Part 2 of Article 368; Part 4 of Article 369; Part 4 of Article 370; Part 2 of Article 450; paragraph 2) of Part 2 of Article 451; Parts 2 and 3 of Article 452 of the Criminal Code.

Especially grave corruption offences include acts provided for in Part 4 of Article 366; Part 4 of Article 367; Parts 3 and 4 of Article 450; and Part 4 of Article 452 of the Criminal Code.

Commentary on Article of the Criminal Code of the Republic of Kazakhstan

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 Worker of the Ministry of Internal Affairs of the Republic of Kazakhstan.

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Article 86. Conditional early release of minors from serving sentences of the Criminal Code of the Republic of Kazakhstan, the Criminal Code of the Republic of Kazakhstan

Article 86. Conditional early release of minors from serving sentences of the Criminal Code of the Republic of Kazakhstan, the Criminal Code of the Republic of Kazakhstan1 Per...