Commentary to article 70. Conditional early release from serving a sentence of the Criminal Code of the Republic of Kazakhstan of the Criminal Code of the Republic of Kazakhstan

     1. A person serving correctional labor, restriction on military service, restriction of liberty, detention in a disciplinary military unit or imprisonment, for law-abiding behavior, conscientious attitude to work (training), active participation in the work of independent organizations and in educational activities, taking measures to compensate for damage caused by a crime, and not needing while serving the sentence imposed by the court in full, the court may release him on parole from serving the sentence imposed by the court. In this case, a person may be fully or partially released from serving an additional type of punishment.      

2. Persons released on parole from serving their sentence, during the remaining unserved part of the sentence, are assigned duties, the list of which is established by Article 178-2 of the Criminal Code of the Republic of Kazakhstan.      

3. Conditional early release may be applied only after the convict has actually served his sentence.:      

a) at least one third of the term of punishment imposed for a minor or moderate crime;      

b) at least half of the term of punishment imposed for a serious crime;      

c) not less than two thirds of the term of punishment imposed for a particularly serious crime.      

4. The term of imprisonment actually served by the convicted person may not be less than six months.      

5. A person serving a life sentence imposed by a court may be released on parole if the court finds that he does not need to continue serving this sentence and has actually served at least twenty-five years of imprisonment.      

6. Control over the behavior of a person released on parole is carried out by the internal affairs bodies, and in relation to military personnel - by the command of military units and institutions.      

7. If, during the remaining unserved part of the sentence, the person to whom the conditional early release was applied has committed:      

a) a repeated administrative offense for which an administrative penalty was imposed on him, or maliciously evaded the duties assigned to him by Article 178-2 of the Criminal Code of the Republic of Kazakhstan and the court when applying conditional early release, the court, on the recommendation of the authorities specified in part six of this Article, may decide to cancel conditional early release and execute the remaining unserved portion of the punishment;      

b) a crime of negligence, the issue of revocation or retention of parole is decided by the court when sentencing for a new crime.;      

c) an intentional crime, the court shall impose punishment on him according to the rules provided for in Article 60 of this Code. According to the same rules, punishment is imposed in case of committing a crime by negligence, if the court cancels the parole.      

8. Conditional early release shall not apply to a person whose sentence of death has been commuted to imprisonment by way of pardon, to a person who has committed an intentional crime while serving his sentence, as well as to a person who was previously released on parole.      

The main reason for applying a person's parole is to correct it. If the court concludes that it is inappropriate for the convicted person to fully serve the sentence imposed by the court, it applies this type of release.      

Considering the idea of conditional early release from punishment, the court has no right to replace the unserved term of imprisonment with a suspended sentence, reduce the unserved term of punishment, but can only release the convicted person on parole or replace the unserved part of the sentence with another, milder punishment, subject to the conditions provided for in Article 71 of the Criminal Code, or refuse to do so.      

The grounds for conditional early release from further punishment are the loss of public danger by the convicted person and the possibility of his final correction without fully serving the sentence.       This opportunity is determined by criteria such as law-abiding behavior, conscientious attitude to work (training), active participation in the work of independent organizations and educational activities, and taking measures to compensate for damage caused by a crime.      

Correction must be proven primarily by law-abiding behavior. Law-abiding behavior should be understood as the fulfillment of all legal norms, rules of the dormitory, norms of morality, compliance with all requirements of the regime of serving a sentence, high-quality performance of assigned work, compliance with safety regulations, careful attitude to equipment, materials, tools, etc.      

In case of conditional early release from the main punishment of convicts to whom additional punishments have been applied, the courts in all cases, on the recommendation of the body executing the punishment, or on their own initiative, are obliged to discuss the possibility of releasing (in whole or in part) the convicted person from additional punishment.      

By applying conditional early release, the court may impose on the convicted person the duties provided for in Articles 178-2 of the Criminal Code of the Republic of Kazakhstan, which they must perform during the remaining unserved part of the sentence. In cases where the sentence of a convicted person has been commuted by an act of amnesty or pardon or a court order, the court, when applying conditional early release from punishment, must calculate the actual part of the sentence served based on the punishment established by the act of amnesty or pardon or court order.      

Another reason for applying this type of release is the person's serving the term of punishment specified in Part 3 of Article 70 of the Criminal Code, depending on the category of the crime committed. Conditional early release may be applied after the convict has actually served his sentence.:      

a) at least one third of the term of punishment imposed for a crime of minor and moderate severity;      

b) at least half of the term of punishment imposed for a serious crime;      

c) not less than two thirds of the punishment imposed for a particularly serious crime.      

In accordance with Part 4 of Article 70 of the Criminal Code, the term of imprisonment actually served by a convicted person may not be less than six months.      

This condition does not apply to other types of punishment, therefore, the issue of parole from serving other types of punishment other than imprisonment may be raised before the expiration of the six-month term.      

84 of the Criminal Code, persons who have committed a crime as a minor may be released on parole from serving two types of punishment: imprisonment and correctional labor after actually serving at least 1/4 of the sentence for a minor or moderate crime, at least 1/3 of the sentence for a serious crime, at least half of the sentence for a particularly serious crime. a serious crime that does not involve an attempt on human life and at least 2/3 of the punishment imposed by the court for a particularly serious crime involving an attempt on human life.    

  If a convicted person is serving a sentence imposed based on the totality of sentences for crimes, some of which were committed before the age of 18 and others at the age of majority, the time served should be calculated in accordance with Article 70 of the Criminal Code.      

A sentence of even life imprisonment is not an obstacle to the application of parole if the court finds that he does not need to continue serving this sentence and has actually served at least twenty-five years in prison (Part 5 of Article 70 of the Criminal Code of the Republic of Kazakhstan) and only if he has no serious violations of the established procedure for serving his sentence. during the previous three years listed in Article 112 of the Criminal Code of the Republic of Kazakhstan.       According to Article 170 of the Criminal Code, convicts who have committed a new grave or especially grave crime while serving life imprisonment are not eligible for parole.      

Conditional early release is applied by the court at the place of serving the sentence imposed by the convicted person on the recommendation of a specialized state body (CUIS), which is responsible for the execution of the sentence.       Upon parole, the courts should not impose any probation period, since, within the meaning of Article 70 of the Criminal Code, such a period is the unserved part of the sentence. In this regard, in the operative part of the resolution on parole, it is necessary to indicate the specific calendar term of punishment from which the convicted person is released on parole, and it is mandatory to indicate the conditional early release of the convicted person. The conditional nature of this type of release from serving a sentence consists in establishing control over the behavior of a person on parole and over the performance of duties assigned to him, as well as the possibility of revoking parole in case of violation of the requirements imposed on those on parole.      

Control over the behavior of a person released on parole is carried out by the internal affairs bodies, and in relation to military personnel - by the command of military units and institutions.      

Part 7 of Article 70 of the Criminal Code of the Republic of Kazakhstan provides the grounds on which parole is revoked. If, during the unserved part of the sentence, a person repeatedly commits an administrative offense, for which an administrative penalty is imposed on him, or he maliciously evades fulfilling the duties assigned to him, Articles 178-2 of the Criminal Code of the Republic of Kazakhstan and the court should lead to the cancellation of parole.      

Part 7 of Article 70 of the Criminal Code of the Republic of Kazakhstan provides the grounds on which parole is revoked. If, during the unserved part of the sentence, a person repeatedly commits an administrative offense, for which an administrative penalty is imposed on him, or he maliciously evades fulfilling the duties assigned to him, Articles 178-2 of the Criminal Code of the Republic of Kazakhstan and the court should lead to the cancellation of parole.      

Failure by a person on parole to fulfill the duties assigned to him by Articles 178-2 of the Criminal Code of the Republic of Kazakhstan and the court for objective reasons that prevented the fulfillment of these duties, for example, due to illness, should not lead to the cancellation of parole.      

The grounds for revoking conditional early release may not be any administrative offenses that have resulted in appropriate penalties, but only offenses related to violations of public order provided for in Chapter 22 of the Code of Administrative Offenses of the Republic of Kazakhstan, for which administrative penalties were reasonably applied to the perpetrator.      

A malicious evasion from fulfilling the duties assigned by the court should be considered a violation of the duties assigned to a person on parole more than 2 times during the year after a warning given to him by the body monitoring his behavior, or a prolonged (more than 30 days) failure to comply with them.    

  If a new crime is committed during the unserved part of the sentence, it is of great importance whether this crime was intentional or negligent, since the legal consequences in this case differ significantly.      

If a crime has been committed due to negligence, the court may revoke or retain the parole. If the court does not cancel the parole, then the person on parole is sentenced for committing a new crime, which he will serve, being released on parole from punishment for the first crime.      

If an intentional crime has been committed, the parole is revoked. In case of cancellation of parole,

- as when committing a new, both intentional and reckless crime during the unserved part of the punishment.,

- punishment is imposed according to the rules provided for in Article 60 of the Criminal Code "Sentencing based on a set of sentences."      

Paragraph "a" of Part 7 of Article 70 of the Criminal Code gives the right, but does not oblige the court to revoke parole, even in the presence of these circumstances.      

Cancellation of conditional early release means the return of the convicted person to places of serving the same type of punishment from which he was released on parole, in order to continue serving the remaining unserved part of the sentence.     

 When deciding on the possibility of applying conditional early release from punishment to a person who had previously been released on parole, if the conditional early release was canceled on the grounds provided for in Part 7 of Article 70 of the Criminal Code, it should be borne in mind that the fact of cancellation of conditional early release by law cannot serve the grounds for refusing to apply parole to a convicted person. Conditional early release may be applied to such persons after they have actually served 3/4 of the prescribed sentence (paragraph 19 of the NP. The Supreme Court of the Republic of Kazakhstan dated December 13, 2001).      

The courts have no right to refuse parole for reasons not provided for by law, such as the leniency of the sentence imposed, the short duration of the convict's stay in this correctional institution, the denial of guilt to the convicted person, the presence of a criminal record in the past, serving a sentence for committing a serious or especially serious crime, etc.      

The current Criminal Code does not contain restrictions on parole from serving a sentence. It can be applied to any person, including in cases of particularly dangerous recidivism, regardless of the nature and severity of the crimes committed.      

Unlike the previous legislation, the Criminal Code of the Republic of Kazakhstan has significantly narrowed the range of persons to whom parole cannot be applied. According to Part 8 of Article 70 of the Criminal Code of the Republic of Kazakhstan, conditional early release does not apply to a person to whom the death penalty has been commuted by way of pardon to imprisonment, or to a person who committed an intentional crime while serving his sentence, as well as to a person who was previously released on parole.

Commentary from 2007 to the Criminal Code of the Republic of Kazakhstan from the Honored Worker of Kazakhstan, Doctor of Law, Professor, Academician of the Kazakhstan National Academy of Natural Sciences BORCHASHVILI I.Sh.                  

Date of amendment of the act:  08/02/2007 Date of adoption of the act:  08/02/2007 Place of acceptance:  NO Authority that adopted the act: 180000000000 Region of operation:  100000000000 NPA registration number assigned by the regulatory body:  167 Status of the act:  new Sphere of legal relations:  028000000000 Report form:  COMM Legal force:  1900 Language of the Act:  rus

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