Commentary on Article 86. Conditional Early Release of Minors from Serving a Sentence of the Criminal Code of the Republic of Kazakhstan

1. Persons sentenced to deprivation of liberty, restriction of liberty or corrective labour for committing a crime while under the age of majority, in the absence of any malicious violations of the established procedure for serving or executing their sentence, shall be subject to conditional early release after actually serving or completing:

• 1) at least one quarter of the term or amount of the sentence imposed by the court for a minor or medium-gravity crime;
• 2) at least one third of the term or amount of the sentence imposed by the court for a grave crime;
• 3) at least one half of the term of the sentence imposed by the court for an especially grave crime not involving an encroachment on human life;
• 4) at least two thirds of the term of the sentence imposed by the court for an especially grave crime involving an encroachment on human life.

2. In cases where a person conditionally released early commits, during the probationary supervision period, a crime through negligence, an intentional criminal misdemeanour or an intentional minor-gravity crime, the issue of revoking or maintaining conditional early release shall be decided by the court when imposing a sentence for the new crime. If the court revokes conditional early release, the sentence shall be imposed in accordance with the rules for imposing sentences based on the aggregate of sentences.

3. In cases where a person conditionally released early commits, during the probationary supervision period, an intentional medium-gravity, grave or especially grave crime, the court shall revoke conditional early release and impose a sentence in accordance with the rules for imposing sentences based on the aggregate of sentences.

According to Part 1 of the Article under consideration, the basis for applying conditional early release from serving a sentence imposed by a court in respect of minors is the absence of malicious violations of the established procedure for serving or executing their sentence. Consequently, conditional early release from punishment serves as a means of rewarding convicted minors who have demonstrated their reformation and as an incentive for exemplary conduct by convicted persons while serving their sentences and for their subsequent release from punishment.

The basis for applying conditional early release in respect of minors, as in the case of adults, is a change in the consciousness and behaviour of the person serving the sentence that makes it possible to conclude that the person does not need to serve the full sentence, since they have demonstrated that they have embarked on the path of reformation.

The conditions for applying conditional early release in respect of minors are:

conviction for a crime committed while under the age of majority;

serving a sentence of deprivation of liberty, restriction of liberty or corrective labour;

actual serving by the convicted person of the portion of the sentence established by law and specified in the Article of the Criminal Code under consideration, namely: a) at least one quarter of the term or amount of the sentence imposed by the court for a minor or medium-gravity crime; b) at least one third of the term or amount of the sentence imposed by the court for a grave crime; c) at least one half of the term of the sentence imposed by the court for an especially grave crime not involving an encroachment on human life; d) at least two thirds of the term of the sentence imposed by the court for an especially grave crime involving an encroachment on human life;

absence of disciplinary sanctions imposed on the convicted person for malicious violations of the established procedure for serving or executing the sentence.

If these conditions are met, the court is obliged to release the minor conditionally and early from serving the specified sentences.

According to Paragraph 3 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 Imposed Sentence”, when deciding whether to accept for its proceedings a convicted person's petition for conditional early release, the court must verify whether the petition meets the requirements imposed on it by law (Parts 1, 3 and 10 of Article 162 of the Penal Enforcement Code and Part 2 of Article 480 of the Criminal Procedure Code), whether the submitted materials contain information characterising the convicted person's behaviour 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, and whether there is evidence that the portion of the sentence established by law has been served.

If the submitted materials do not contain sufficient information for consideration of the petition and it is impossible to supplement such information during the court hearing, the judge, during the preparation for consideration of the petition, shall return the materials by a ruling for appropriate completion.

If a person was convicted of committing a criminal offence before reaching the age of majority, but the conditions for their early release arise after they have reached the age of 18, the provisions of the Article of the Criminal Code under consideration shall apply when deciding the issue of conditional early release.

Conditional early release of a convicted minor from serving a sentence may be applied after the periods specified in Part 1 of Article 86 of the Criminal Code have actually been served. When calculating the actual period of service of the sentence by a convicted person, the time during which the person was held in custody before the pronouncement of the judgment and its entry into legal force shall be included.

In cases where the sentence imposed on a convicted person has been mitigated by an act of amnesty or pardon, or by a ruling of a higher court, when applying conditional early release from punishment, the court must calculate the portion of the sentence actually served on the basis of the sentence 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 an aggregate of crimes or an aggregate of sentences for committing crimes of different categories of gravity, when deciding the issue of conditional early release from serving the sentence, the court must calculate the period after the actual serving of which conditional early release may be applied in accordance with the rules provided for in Part 1 of Article 86 of the Criminal Code, in relation to the most serious crime included in the aggregate.

The actual serving by a convicted person of the portion of the sentence prescribed by law, in accordance with Part 1 of Article 86 of the Criminal Code, cannot serve as an unconditional basis for conditional early release.

When deciding the issue of conditional early release, an individual approach must be ensured, and in each specific case it must be established whether the information contained in the petition and other materials is sufficient for conditional early release from serving the sentence.

When assessing the conduct of a convicted person, the court must take into account their 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, rewards and disciplinary sanctions, maintenance of relations with relatives and other convicted persons, positive or negative attitude towards studies, compensation for damage, transfer to less restrictive conditions of detention, and other circumstances that may indicate the convicted person's reformation.

The court's conclusion regarding the reformation 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 before the pronouncement of the judgment.

Compliance with the requirements stipulated by Article 130 of the Penal Enforcement Code shall be established on the basis of a thorough examination by the court of the materials of the personal file.

Disciplinary sanctions imposed on a convicted person throughout the entire period of serving the sentence, with the exception of those that have been lifted 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 reformation of a convicted person, each instance of the imposition of a disciplinary sanction must be examined to determine whether the violations constitute malicious violations.

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

A comparison of the provisions of Articles 72 and 86 of the Criminal Code makes it possible to conclude that the grounds, procedure and consequences of conditional early release from serving a sentence are, in fact, the same for both adults and persons who committed crimes while under the age of majority.

Article 72 of the Criminal Code stipulates that a person shall be subject to conditional early release if they do not need to serve the full sentence imposed in order to reform. In addition, a necessary condition for conditional early release from serving a sentence is the mandatory serving of the period established by law.

For persons who committed a crime before reaching the age of 18, this mandatory period is reduced compared with the period established in Part 3 of Article 72 of the Criminal Code for persons who committed a crime after reaching the age of majority.

The current Criminal Code permits conditional early release from serving sentences only in the form of deprivation of liberty and restriction of liberty. However, in respect of persons who committed crimes while under the age of majority and were convicted at that age, conditional early release from serving a sentence is permitted where the convicted person is serving a sentence in the form of deprivation of liberty, restriction of liberty or corrective labour.

According to Part 2 of Article 72 of the Criminal Code, a person who has been conditionally released early from serving a sentence of deprivation of liberty shall be placed under probationary supervision for the remaining unserved part of the sentence in accordance with the rules of Part 2 of Article 44 of the Criminal Code. When conditional early release is applied, the person shall also be subject to the obligation provided for by the Penal Enforcement Code of the Republic of Kazakhstan.

According to Part 8 of Article 169 of the Penal Enforcement Code, a minor shall also be obliged to:

register with the internal affairs authorities at their place of residence within five working days from the date of release from the institution;

report to the internal affairs authorities and the probation service, respectively, at least once a month to provide an account of their behaviour and the social and legal assistance received;

not leave their place of residence during the hours specified by the internal affairs authorities;

not change their permanent place of residence, employment or place of study without written notification to the internal affairs authorities;

not visit places designated by the internal affairs authorities during their free time from work and studies;

not travel to other localities without written permission from the internal affairs authorities;

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

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

take measures to compensate for damage caused to the health or property of the victim or for material damage caused to the State;

at the request of the internal affairs authorities, provide explanations and other documents necessary for exercising control over the conduct of the person conditionally released early;

where applicable, submit to the state revenue authorities at their place of residence, in accordance with the procedure established by the tax legislation of the Republic of Kazakhstan, a declaration of income and property that constitutes an object of taxation and is located both within the territory of the Republic of Kazakhstan and outside it. The said declaration shall be submitted before the expiry of the remaining unserved part of the sentence. In this case, the persons concerned shall submit to the internal affairs authorities a certificate from the state revenue authority confirming receipt of the declaration.

In the event that a person conditionally released early evades probationary supervision, the internal affairs authorities shall conduct initial measures to establish the person's whereabouts and the reasons for the evasion. If the whereabouts of the person conditionally released early cannot be established, the internal affairs authorities shall submit a motion to declare the person wanted and to select a preventive measure.

According to 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 Imposed Sentence”, malicious evasion of the 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 Penal Enforcement Code, shall mean repeated failure to fulfil such obligations after the authority supervising the convicted person's conduct has issued a written warning concerning the possibility of revoking conditional early release. At the same time, the issue of whether evasion of the fulfilment of the obligations imposed by the court is malicious must be decided in each specific case, taking into account its duration, the reasons for the evasion and other circumstances.

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

When conditionally releasing convicted persons early from their principal sentence, where an additional punishment has also been imposed on them, the court shall in all cases, upon a petition from the authority executing the sentence or on its own initiative, consider the possibility of releasing the convicted person, in whole or in part, from the additional punishment as well. The court's decision on this issue must be reflected in the operative part of the ruling.

In accordance with Part 2 of Article 154 of the Penal Enforcement Code, the following shall constitute malicious violations of the procedure for serving a sentence by minors sentenced to deprivation of liberty:

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

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

threatening representatives of the institution's administration, insulting them, disobeying them, including acts accompanied by intentional infliction of any injury upon oneself for the purpose of violating the regime for serving the sentence;

transfer (receipt), manufacture or storage of items, documents, belongings, products, substances and foodstuffs not provided for by the internal regulations of the institutions;

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

evading compulsory and forced treatment imposed by a court;

committing acts of a sexual nature;

organising or actively participating in groups of convicted persons aimed at committing the violations specified in Subparagraphs 1)-7) of Part 2 of Article 154 of the Penal Enforcement Code of the Republic of Kazakhstan.

A convicted person who has committed the specified violations shall be recognised as a malicious violator of the established procedure for serving a sentence by a resolution of the head of the medium-security institution for the detention of minors, provided that the disciplinary sanction of a strict reprimand has been imposed on that person two or more times.

According to Part 2 of Article 86 of the Criminal Code, in cases where a person conditionally released early commits, during the probationary supervision period, a crime through negligence, an intentional criminal misdemeanour or an intentional minor-gravity crime, the issue of revoking or maintaining conditional early release shall be decided by the court when imposing a sentence for the new crime. In other words, the legislator permits the possibility of maintaining conditional early release in cases involving the commission of crimes through negligence, intentional criminal misdemeanours or intentional minor-gravity crimes.

If the court revokes conditional early release, the sentence shall be imposed based on the aggregate of sentences (Article 60 of the Criminal Code).

If, during the probationary supervision period (Part 3 of Article 86 of the Criminal Code), a conditionally released minor commits an intentional medium-gravity, grave or especially grave crime, the court shall revoke conditional early release and impose a sentence in accordance with the rules for imposing sentences based on the aggregate of sentences (Article 60 of the Criminal Code).

Thus, the future of the minor is made dependent on their conduct after conditional early release from punishment.

Commentary of 2021 on 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.

Constitution Law Code Regulatory Decree Order Decision Resolution Advocate Almaty Lawyer Legal service Legal consultation Civil Criminal Administrative cases and disputes Defence Arbitration Legal Company of Kazakhstan Law Office Court Cases Declaration Decree Order Resolution Decision Report Conclusion Application Conclusion Convention Contract Memorandum Methodology Norms Note Rules Programme Charter Charter Article Commentary Resolution Regulations Protocol Draft Programme Rules Addresses