Conditional early release or replacement of the unserved part of the sentence with a more lenient type of punishment

The quality of materials provided to the court by the institution or bodies executing the punishment, in accordance with part 2 of Article 480 of the CPC, the Normative Resolution of the Supreme Court of the Republic of Kazakhstan dated October 2, 2015 No. 6 (paragraph 3) directs the courts to ensure that in case of violations of the requirements of parts 1,3,9 of Article 162 of the Criminal Code and part 2 of Article 480 of the CPC, the lack of sufficient data in the submitted materials to consider the application or the inability to complete them, During the preparation for the consideration of the petition, the judge returned the material for appropriate registration by his decision. At the same time, in 2020, the courts of the republic returned a total of 1,427(698+729) materials on parole (698+729) for the following reasons: non-compliance of materials with the requirements of Article 480 of the Code of Criminal Procedure, failure by institutions or bodies executing punishment to provide residential addresses of victims, incompleteness or insufficiency of data sent to the court about the convicted person, absence of a verdict and other documents, information about compensation for damage to the victim, the return of electronic materials due to poor-quality scanning of case materials, lack of inventory, characteristics of the convicted person, the convicted person's failure to comply with the requirements of Article 162, part 10 of the Criminal Code. As the analysis showed, judges, in case of non-compliance with the above requirements of the law, return the materials for additional registration by decree. Thus, according to the material on parole in respect of K., convicted under paragraphs 1), 3) of part 2 of Article 188 of the Criminal Code, the submitted documents, approved by the head of the Russian State Institution AP-162/2, contain false information about the absence of a lawsuit against the verdict.

Whereas the verdict against K. recovered 682,000 tenge in favor of the victim. On August 26, 2020, the appellate instance issued a private ruling against the head of the DUIS in the Pavlodar region. By court decision No. 2 of Pavlodar dated December 2, convicted A.'s petition for parole was returned due to the fact that the Pavlodar Probation Service attached a copy to the material, and not the original of the convicted person's petition. The petition of R. The release was returned by the Ekibastuz City Court, since the convict, without contacting the Probation Service, sent a petition to the court himself, without attaching judicial acts characterizing his data, information about the served and remaining term of punishment. When petitions for parole or the replacement of the unserved part of the sentence with a more lenient type of punishment are received at the stage of preparing the court session, in some cases the courts decide to return the petitions in connection with their withdrawal. According to the materials on the replacement of the unserved part of the punishment with a milder type of punishment, applications are returned due to the lack of information about the place of residence after the replacement of the punishment, as well as information about employment. In order to exclude unjustified returns of materials, the courts propose to distinguish between data, the presence of which is sufficient for consideration of the petition and the absence of which can be filled in at a court hearing (for example: information on compensation for damage caused by a crime; on serving a legally prescribed part of the sentence, etc.). At the same time, the lack of factual data such as information about the convicted person's treatment for alcoholism and drug addiction and its results, about the presence of other diseases that also require mandatory treatment, about relationships with family members, about the prospect of employment and possible place of residence, in the case of parole, the DMN prevents the consideration of the petition and to fill them in court This is not possible. The actual serving of a sentence by a convicted person in a lesser amount than that established by Part 3 of Article 72 of the Criminal Code and part 2 of Article 73 of the Criminal Code has always been regarded by the courts as a circumstance precluding the use of parole and DMN. However, based on this circumstance, the courts made different procedural decisions: either they refused to accept the application for parole and the DMN, or, having accepted the application for consideration, in some cases they considered the application on its merits and refused to satisfy it, in others they terminated the proceedings. If the convicted person has not served the legally prescribed part of the sentence, he does not have the right to apply for parole, therefore, if such a request is received by the court, it must be returned. A repeated application for parole and DMS may be filed at any time, as soon as the convicted person has served the legally prescribed part of the sentence, including earlier than 6 months.

Meanwhile, according to part 10 of Article 162 of the Criminal Code, the court's refusal to replace the unserved part of the sentence with a more lenient punishment does not prevent the submission of a petition for conditional release before the expiration of the six-month period, as well as the court's refusal to grant parole – to replace the unserved part of the sentence with a more lenient punishment. It follows from this provision of the law that parole and the replacement of the unserved part of the sentence with another, milder punishment are different institutions of criminal law. Therefore, the court's refusal to satisfy the convicted person's request to replace the unserved part of the sentence with another, milder punishment does not prevent the submission of a request for conditional release of the convicted person for an unserved term of punishment before the expiration of the six-month period. Example: by the decree of the court No. 2 of the Baikonur district of the city of Nur-Sultan dated March 15, 2020, Sh. He was refused conditional long-term release for an unserved sentence, because earlier, on November 13, 2019, that is, before the expiration of 6 months, he was denied a request to replace the unserved part of the sentence with a more lenient one. However, on May 26, 2020, the court of appeal overturned the decision of the court of first instance, since the filing of a petition to replace the unserved part of the sentence with a more lenient punishment and the refusal to satisfy it does not prevent the filing of a petition for the conditional release of a convicted person for an unserved sentence before the expiration of the six-month period. Another example: K., who is serving a sentence in the Russian State Institution LA-155/13 by the verdict of the district court No. 2 of the Medeu district of Almaty dated December 27, 2019 under part 2 of Article 262, part 2 of Article 368 of the Criminal Code, sentenced to 5 years in prison with life imprisonment for the right to hold positions in public service, appealed to the court a petition for parole from the unserved part of the sentence. By the decision of the Turksib District Court of Almaty dated November 20, 2020, the petition was granted. Disagreeing with the court's decision, the prosecutor brought a private petition for a review of the ruling. The board overturned the decision with the adoption of a new judicial act on the return of the petition for appropriate registration, since the institution where the convicted person is serving his sentence did not provide an assessment of behavior. In such circumstances, it is not possible to consider a petition without assessing the behavior of the convicted person, characterizing his behavior, since it involves the need for a full and objective investigation of the circumstances of the case. In our opinion, such a decision by the court of appeal cannot be considered justified. Another example, by a decision of the Almaly District Court of Almaty dated June 18, 2020, the petition of convict B. to replace the unserved part of the sentence with a more lenient type of punishment was granted. The unserved part of the sentence was commuted to him by the verdict of the Almaly District Court of Almaty dated September 21, 2018 under paragraph 7) of part 2 of Article 106 of the Criminal Code in the form of 3 years, 3 months and 20 days of imprisonment for a fine of 825,066 tenge. By a decision of the judicial board dated September 1, 2020, this decision was overturned with the issuance of a new ruling, which dismissed the petition of convict B. to replace the unserved part of the sentence with a more lenient type of punishment, and the prosecutor's petition was granted.

When applying Article 73 of the Criminal Code, the Court of first instance did not take into account that the sentence imposed on convicted B. was suspended, i.e. the sentence of imprisonment was not actually served. In this case, the court should not have accepted the said petition, but returned it with reference to the above-mentioned provisions of the law. There are cases when the court leaves the convicted person's petition for parole or MLA without consideration, whereas the CPC does not provide for such a decision. According to statistics, 883 (421+462) applications were left without consideration in 2020, and in 2019 there were 805 (391+414), which means that a significant increase has been observed subsequently. This practice of the courts does not comply with the requirements of the law, therefore it is urgently necessary to take measures and eliminate the incorrect practice of leaving petitions without consideration. Some of the petitions of the convicted by the court of first instance were left without consideration on the merits due to the fact that the convicts withdrew their petitions before the start of the court session, or asked the court to leave their petitions without consideration, or did not support them at the court session. Thus, by a decision of the Ekibastuz City Court dated February 25, 2020, the petition of M., convicted on January 12, 2018 under paragraph 1 of part 2 of Article 191, part 7 of Article 72, Article 60 of the Criminal Code to 4 years and 3 months of imprisonment for parole, was left without consideration at the request of the convicted person. The analysis showed that the main reasons for the withdrawal of the convicts of their petitions for parole and ZMN are their lack of confidence in the satisfaction of the petitions by the court. In this regard, in order to improve their position in terms of receiving additional incentives, repayment of the harm caused by the crime and the procedural costs of the case, the convicts, before the court begins to consider the petition or during the court session, petition to leave them without consideration. For example: by court order No. 2 of Kostanay dated June 16, 2020, the petition of convict B. The decision to replace the unserved part of the punishment with a more lenient type of punishment was left without consideration and returned to the convicted person.

At the hearing, a representative of the Administration of the UK-161/11 Institution reported that convict B. refused to attend the court hearing, leaving the video conferencing room, the court, taking into account this circumstance, dismissed the petition without consideration. A similar situation occurred when considering the petition of K., who was convicted by the verdict of the Zhetysu District Court of Almaty dated February 6, 2020 under part 1 of Article 24, paragraph 1) of part 2 of Article 188 of the Criminal Code. K. did not appear in court. Another example: convict D. He applied to court No. 2 in Taraz with a request for parole from further serving his sentence in accordance with paragraph 5 of part 3 of Article 72 of the Criminal Code, that is, in connection with the fulfillment of all the conditions of the procedural agreement. By the decision of the court No. 2 of Taraz dated September 10, 2020, his petition was left without consideration. The court, leaving the petition without consideration, motivated its decision by the fact that, according to part 5 of Article 478 of the CPC, issues of conditional long-term release from serving a sentence, replacement of the unserved part of the sentence with a milder type of punishment or reduction of the sentence are considered by the court at the request of the Prosecutor General of the Republic of Kazakhstan or his deputy within the framework of a procedural cooperation agreement. In this case, there is an omission by the penal enforcement authorities, who did not explain to the convicted person the procedure for applying, and the court should not have accepted the petition for trial. At the same time, the materials provided by the institution and the body executing the punishment do not always contain information about the victims, and the courts, as one of the formal reasons for refusing to satisfy the petitions of the convicted, indicate in their rulings the fact that the injured party does not have an opinion.

In this regard, we consider the proposals of the courts to impose on the institution and the body executing the punishment the obligation to notify the victims of the sending of materials to the court on parole and DMS, that the materials submitted to the court at the request of convicts for parole from serving the sentence or the replacement of the unserved part of the punishment with a more lenient type of punishment would be they would be sufficient if they contained not only information about the place of residence of the victim or his representative., but also the early notification of the injured party by the administration of the penitentiary institution or the body executing the punishment about the occurrence of the convicted person's right to parole and ZMN. These changes would significantly reduce the time required to review the materials and would help to make a legitimate, reasonable and fair decision. Due to the legal and reasoned decisions made by the courts based on the materials of this category, court proposals on the expediency of forming personal files of convicts not only in paper, but also in electronic format with all the necessary information, including information on penalties and rewards, deserve attention. Access to this database by judges reviewing materials on parole and probation would greatly facilitate their work, as well as allow them to verify the accuracy of information about the disciplinary practices of convicts, and minimize the risk of hiding the facts of malicious violations and violations of the established procedure for serving sentences. 

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