Commentary to article 71. Replacement of the unserved part of the punishment with a milder type of punishment of the Criminal Code of the Republic of Kazakhstan

     1. A court may replace the remaining unserved part of the sentence with a more lenient type of punishment, taking into account his behavior during the period of serving the sentence, to a person serving a custodial sentence for a minor, moderate and serious crime. In this case, a person may be fully or partially released from serving an additional type of punishment.      

2. The unserved part of the punishment may be replaced by a milder type of punishment after the convicted person has actually served at least one third of the sentence for committing crimes of minor and moderate severity, half of the sentence for serious crimes, or who was previously released on parole from serving a custodial sentence and committed new crimes during the remaining unserved part of the punishment..      

3. When replacing the unserved part of the punishment, the court may choose any milder type of punishment in accordance with the types of punishments specified in Article 39 of this Code, within the limits provided by this Code for each type of punishment.      

According to Article 71 of the Criminal Code of the Republic of Kazakhstan, the replacement of the unserved part of the punishment with a more lenient type of punishment can be applied only to persons serving imprisonment. The Law establishes two conditions necessary to replace the unserved part of the punishment with a milder type of punishment.      

The first condition concerns the severity of the crime for which the convicted person is serving his sentence.      

According to Part 1 of Article 71 of the Criminal Code of the Republic of Kazakhstan, the replacement of the unserved part of the punishment with a more lenient type of punishment is applied to crimes of minor, moderate severity and serious crimes.      

When making a decision to replace the unserved part of the punishment with a milder type of punishment, data characterizing the behavior of the convicted person during the period of serving the sentence, his attitude to work, the presence of penalties and incentives, etc. are subject to consideration.      

In parallel with the unserved part of the main punishment, a person may be fully or partially released from additional punishment.      

The second circumstance concerns the amount of the part of the imposed punishment, after which the deprivation of liberty may be replaced by a more lenient type of punishment. Such substitution is allowed only after the convicted person has served at least one third of the term of imprisonment imposed by the court for committing a minor or moderate crime, half of the sentence for serious crimes, or if the person was previously released on parole from serving a custodial sentence and committed new crimes during the remaining unserved part of the sentence (Part 2 71 of the Criminal Code of the Republic of Kazakhstan).      

In accordance with Article 71 of the Criminal Code, the unserved part of the imposed term of imprisonment for a crime of minor and moderate severity, taking into account the behavior of the convicted person, may be replaced by any milder type of punishment specified in Article 39 of the Criminal Code: arrest, restriction of liberty, correctional labor, community service, and in relation to convicted military personnel, disciplinary detention. military unit or restriction on military service. In this case, a person may be fully or partially released from serving an additional sentence.      

The unserved part of the imprisonment may be replaced by a milder type of punishment after the convict has actually served at least 1/3 of the sentence.      

Serving a more lenient type of punishment is assigned for a period equal to the remaining unserved part of the sentence imposed by the court. However, this period may not exceed the upper limit established by law for the appropriate type of more lenient punishment.      

Persons to whom the deprivation of liberty imposed by a court verdict has been commuted to a more lenient type of punishment may subsequently be released on parole from serving a new, more lenient type of punishment on the basis and in accordance with the procedure established by Article 70 of the Criminal Code.      

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

If the convicted person commits a new crime while serving a more lenient type of punishment, only the unserved part of the new punishment is fully or partially added to the punishment imposed for him, and not the part of the imprisonment that remained unserved.

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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