Commentary on Article 73. Replacement of the Unserved Part of a Sentence with a More Lenient Type of Punishment or Reduction of the Term of the Imposed Sentence of the Criminal Code of the Republic of Kazakhstan
1. A person serving a sentence of imprisonment for a criminal offence of minor, medium or serious gravity may have the remaining unserved part of the sentence replaced by a more lenient type of punishment by a court, provided that the person has fully compensated for the damage caused by the criminal offence or has not committed malicious violations of the established procedure for serving the sentence. In this case, the person may be fully or partially released from serving an additional type of punishment, with the exception of punishments imposed for life.
2. The unserved part of a sentence may be replaced by a more lenient type of punishment after the convicted person has actually served at least one-fourth of the sentence for committing a criminal offence of minor or medium gravity, and one-third of the sentence for serious criminal offences.
Replacement of the unserved part of a sentence with a more lenient type of punishment shall not apply to persons convicted of a criminal offence against the sexual inviolability of minors, except in cases where such a criminal offence was committed by a minor against another minor aged between fourteen and eighteen years; a terrorist or extremist criminal offence that resulted in the death of persons or was associated with the commission of an especially serious criminal offence; or a criminal offence committed as part of a criminal group.
For foreign nationals and stateless persons, the unserved part of a sentence may be replaced only with a fine, with or without expulsion from the Republic of Kazakhstan.
2-1. In the event that conditional early release from serving a sentence of imprisonment is revoked, the periods specified in part two of this Article shall be calculated based on the remaining unserved part of the sentence, and where a sentence is imposed on the basis of the aggregate of judgments in accordance with subparagraphs 2) and 3) of part seven of Article 72 of this Code, — based on the final sentence imposed.
3. When replacing the unserved part of a sentence, the court may impose a fine calculated at the rate of one monthly calculation index for every four days of imprisonment, or restriction of liberty calculated at the rate of one day of restriction of liberty for each day of imprisonment. Full compensation for the damage caused by the criminal offence shall be a prerequisite for replacement with a fine.
4. A person serving a sentence of imprisonment for criminal offences of minor, medium, serious or especially serious gravity may have the remaining unserved part of the sentence reduced by the court by no more than one-half if, during the period of serving the sentence, the person assisted in the detection and investigation of criminal offences committed by a criminal group or fulfilled all the conditions of a procedural agreement. Reduction of the unserved part of a sentence shall not apply to persons convicted of criminal offences against the sexual inviolability of minors, except in cases where such a criminal offence was committed by a minor against another minor aged between fourteen and eighteen years.
The institution of replacing the unserved part of a sentence with a more lenient type of punishment, like the institution of conditional early release, constitutes the implementation of the principles of humanism, reasonable economy of criminal-law measures and justice, and is intended to ensure the achievement of all the purposes of punishment provided for by the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the CC RK). The application of replacement of the unserved part of a sentence with a more lenient type of punishment is an act of trust by the State in a convicted person who, through their conduct, has demonstrated that less stringent legal restrictions may be applied to them. At the same time, replacement of punishment also serves as an incentive for the convicted person to continue lawful conduct.
Unlike conditional early release, replacement of the unserved part of a sentence with a more lenient type of punishment may be applied only to persons serving a sentence of imprisonment for criminal offences of minor, medium or serious gravity. Replacement of the unserved part of a sentence with a more lenient type of punishment is not предусмотрено for convicted persons serving other types of punishment, or for those serving sentences for criminal offences classified as especially serious.
Another distinction between replacement of the unserved part of a sentence with a more lenient type of punishment and conditional early release is the absence of any possibility of revoking the court's decision and returning the convicted person to serve the original sentence. 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 after the replacement of the sentence. The Supreme Court of the Republic of Kazakhstan also adheres to this position. Thus, paragraph 20 of its Regulatory Resolution “On Judicial Practice in Matters of 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 Imposed Sentence” states that persons whose imprisonment imposed by a court judgment has been replaced with a more lenient type of punishment may subsequently be conditionally early released from serving the new, more lenient type of punishment on the basis of Article 72 of the CC.
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 1 of the Article under consideration, a person serving a sentence of imprisonment for a criminal offence of minor, medium or serious gravity may have the remaining unserved part of the sentence replaced by a more lenient type of punishment by a court, provided that the person has fully compensated for the damage caused by the criminal offence or has not committed malicious violations of the established procedure for serving the sentence. It follows from the content of part 1 of the Article under consideration that the following grounds are mandatory for replacing the remaining unserved part of a sentence imposed by a court with another, more lenient type of punishment:
the person must be serving a sentence of imprisonment for criminal offences of minor, medium or serious gravity;
the damage caused by the criminal offence must have been fully compensated, or the convicted person must not have committed malicious violations of the established procedure for serving the sentence.
Full compensation for the damage caused by the criminal offence or the absence of malicious violations of the established procedure for serving the sentence are specified as alternative conditions. Therefore, for the application of the provision under consideration, in addition to serving a sentence of imprisonment for criminal offences of minor, medium or serious gravity, the existence of only one of the above grounds is sufficient.
According to Article 130 of the Penal Enforcement Code (hereinafter referred to as the PEC), a violation of the established procedure for serving a sentence means failure to comply with the requirements established by the PEC and the internal regulations of correctional institutions. For the concept of malicious violations of the established procedure for serving a sentence, see the commentary to Article 72 of the CC.
When replacing the unserved part of a sentence, the court may choose any more lenient type of punishment in accordance with the types of punishment specified in Article 40 of the CC, within the limits provided for each type of punishment by the CC.
Paragraph 21 of the previously mentioned Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated October 2, 2015, states: “In accordance with Article 73 of the CC, the unserved part of the term of imprisonment imposed for criminal offences of minor, medium and serious gravity may, taking into account the conduct of the convicted person, be replaced by a more lenient type of punishment specified in Article 40 of the CC: a fine or restriction of liberty.”
This provision grants the court the right, but does not impose an obligation, to replace the unserved part of a sentence with a more lenient type of punishment.
In accordance with Article 87 of the CC, the unserved part of a sentence of imprisonment imposed on juvenile convicted persons serving such a sentence may be replaced by the court only with restriction of liberty.
According to part 2 of the Article under consideration, the unserved part of a sentence may be replaced with a more lenient type of punishment after the convicted person has actually served at least one-fourth of the sentence for committing a criminal offence of minor or medium gravity, and one-third of the sentence for serious criminal offences.
For foreign nationals and stateless persons, the unserved part of a sentence may be replaced only with a fine, with or without expulsion from the Republic of Kazakhstan.
By the Law of the Republic of Kazakhstan dated December 27, 2019, “On Amendments and Additions to Certain Legislative Acts of the Republic of Kazakhstan on Improving Criminal and Criminal Procedure Legislation and Strengthening the Protection of Individual Rights”, Article 73 of the CC was supplemented with part 2-1, which reads as follows:
“In the event that conditional early release from serving a sentence of imprisonment is revoked, the periods specified in part two of this Article shall be calculated based on the remaining unserved part of the sentence, and where a sentence is imposed on the basis of the aggregate of judgments in accordance with subparagraphs 2) and 3) of part seven of Article 72 of this Code, — based on the final sentence imposed.”
When the unserved part of a sentence is replaced with a more lenient type of punishment, the person may be fully or partially released from serving an additional type of punishment, with the exception of punishments imposed for life. Deprivation of the right to hold a certain position or engage in a certain activity may be imposed for life (Article 50 of the CC).
According to part 3 of the Article under consideration, when replacing the unserved part of a sentence, the court may impose a fine calculated at the rate of one MCI for every four days of imprisonment, or restriction of liberty calculated at the rate of one day of restriction of liberty for each day of imprisonment. It should be borne in mind that full compensation for the damage caused by the criminal offence is a mandatory condition for replacing the unserved part of imprisonment with a fine.
If a convicted person commits a new intentional criminal offence while serving a more lenient type of punishment, only the unserved part of the sentence imposed when imprisonment was replaced shall be fully or partially added to the punishment imposed for the new criminal offence.
In cases where the punishment initially imposed on a convicted person has been mitigated by an act of amnesty or pardon, or by a ruling of a higher court, the court, when applying Article 73 of the CC, must calculate the actually served part of the sentence based on the term of punishment established by the act of amnesty or pardon, or by the ruling of the higher court.
If a person has been convicted on the basis of the aggregate of criminal offences or the aggregate of judgments for committing offences of different categories of gravity, then, when deciding on the replacement of the unserved part of a sentence with a more lenient type of punishment, the court must calculate the period after which such replacement may be applied in accordance with the rules provided for in part 2 of Article 73 of the CC.
The actual serving by a convicted person of the part of the sentence prescribed by law in accordance with part 2 of Article 73 of the CC cannot serve as an unconditional ground for replacing the unserved part of a sentence with a more lenient type of punishment.
When deciding on the replacement of an imposed sentence with a more lenient type of punishment, courts must ensure an individual approach and establish, in each specific case, whether the information contained in the petition and other materials is sufficient to replace the imposed sentence with a more lenient type of punishment, that is, they must assess the 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 system institution, participation in educational activities and the public life of the institution, incentives, disciplinary penalties, maintenance of relationships with relatives and other convicted persons, a 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 their conduct not only during the period immediately preceding the consideration of the petition, but also throughout the entire period of their stay in the institution, including the period of detention prior to the delivery of the judgment.
Compliance with the requirements of Article 130 of the PEC shall be established on the basis of a thorough examination by the court of the materials of the personal file. Disciplinary penalties imposed on a convicted person throughout the entire period of serving the sentence, except for those that have been removed 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, each instance of the imposition of a disciplinary penalty must be examined to determine whether the violations in question constitute malicious violations.
In cases where the damage caused by the criminal offence (material damage and moral harm under a civil claim) has not been compensated due to such objective circumstances as the convicted person's disability or the presence of illnesses preventing employment, etc., the court may not refuse to replace the unserved part of a 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 the damage caused by the criminal offence (by concealing property or income, evading work, etc.), together with other circumstances, may constitute an obstacle to replacing the unserved part of a sentence with a more lenient type of punishment.
In accordance with the requirements of part 5 of Article 480 of the Criminal Procedure Code (hereinafter referred to as the CPC), the issue of conditional early release is considered by the court with the mandatory participation of the convicted person. If the court refuses to grant a petition for conditional early release, in accordance with subparagraph 3) of part 7 of Article 480 of the CPC, it may, in the same hearing and before retiring to the deliberation room, decide to replace the unserved part of the sentence with a more lenient type of punishment, provided that the convicted person has submitted an appropriate petition.
In the presence of objections from the convicted person, the court shall not be entitled to replace the unserved part of the sentence with another, more lenient type of punishment.
In accordance with part 4 of the Article under consideration, a person serving a sentence of imprisonment for criminal offences of minor, medium, serious or especially serious gravity may have the remaining unserved part of the sentence reduced by the court by no more than one-half if, during the period of serving the sentence, the person assisted in the detection and investigation of criminal offences committed by a criminal group or fulfilled all the conditions of a procedural agreement. Reduction of the unserved part of a sentence shall not apply to persons convicted of criminal offences against the sexual inviolability of minors, except in cases where such a criminal offence was committed by a minor against another minor aged between fourteen and eighteen years.
The Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan “On Judicial Practice in Matters of 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 Imposed Sentence” (paragraph 24) also states that, when considering a petition by the Prosecutor General of the Republic of Kazakhstan or their deputy, submitted in accordance with part 3 of Article 621 of the CPC, for the reduction of the unserved part of a sentence, courts must establish whether part 2 of Article 618 of the CPC was complied with when concluding the procedural agreement with the convicted person; whether the convicted person assisted in detecting criminal offences that are the subject of the procedural cooperation agreement and exposing persons who committed serious criminal offences, criminal offences as part of a criminal group, as well as extremist and terrorist criminal offences; and whether a conviction against the persons responsible 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.
Replacement of the unserved part of a sentence with a more lenient type of punishment shall not apply to persons convicted of criminal offences against the sexual inviolability of minors, except in cases where such a criminal offence was committed by a minor against another minor aged between fourteen and eighteen years; a terrorist or extremist criminal offence that resulted in the death of persons or was associated with the commission of an especially serious criminal offence; or a criminal offence committed as part of a criminal group.
The list of criminal offences: offences against the sexual inviolability of minors is provided for in subparagraph 42); terrorist criminal offences — in subparagraph 30); extremist criminal offences — in subparagraph 39) of Article 3 of the CC (see the commentary to Article 3 of the CC). The concept of a criminal group is provided in the commentary to subparagraph 24) of Article 3 of the CC.
According to part 5 of Article 11 of the CC, especially serious criminal offences are intentional acts for which the sanction of an article or part of an article of the Special Part of the CC provides for imprisonment for a term exceeding twelve years, life imprisonment or the death penalty.
Commentary to the Criminal Code of the Republic of Kazakhstan, 2021, 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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