Consideration of Applications for Conditional Early Release and Replacement of a Sentence with a More Lenient Type of Punishment
In a number of cases, courts take a formalistic approach to considering applications, failing to take into account the individual characteristics of the convicted person and the specific circumstances reflected in the case materials.
Insufficient attention is paid to evidence indicating that the convicted person has been rehabilitated or, conversely, that there have been no positive changes in their behaviour.
There are cases of applications being granted without proper reasoning or convicted persons being denied release. Judicial acts do not always contain the necessary information about the convicted person or the reasons underlying the decisions made, which raises doubts as to their validity. Courts often limit themselves to listing the number of disciplinary sanctions, incentives and other information, or the reasoning section consists mainly of quotations from legislation and a regulatory resolution. There are also cases where court rulings contain no information whatsoever about the convicted person's conduct during the period of serving the sentence.
For example, on 6 April 2023, Court No. 2 of Taraz refused to grant conditional early release (hereinafter referred to as CER) to J., who had been convicted in 2019 under Part 4 of Article 188 of the Criminal Code and sentenced to 7 years and 6 months of imprisonment.
In making this decision, the court confined itself to formally citing the provisions of legislation in its ruling, failed to provide any information about the convicted person's conduct during the period of serving the sentence, and gave no reasons whatsoever for refusing CER.
On 19 December 2023, the same court issued a similarly unreasoned decision refusing CER upon the application of T., who had been convicted in 2011 under Part 2 of Article 96 of the Criminal Code and sentenced to 17 years of imprisonment.
Pursuant to Article 39 of the Criminal Code, punishment is imposed for the purpose of restoring social justice, as well as rehabilitating the convicted person and preventing the commission of new criminal offences by both the convicted person and other persons.
Punishment is not intended to inflict physical suffering or humiliate human dignity.
Where the conditions established by Articles 72, 73, 86 and 87 of the Criminal Code are met, convicted persons may be exempted from serving their entire sentence. They may be conditionally released before the expiration of their sentence (hereinafter referred to as conditional early release or CER), or the sentence may be replaced with a more lenient type of punishment (hereinafter referred to as replacement of punishment with a more lenient type or RPM).
CER and RPM constitute acts of humanism and trust on the part of the State towards a convicted person who, through exemplary conduct and efforts to make amends for the harm caused during the period of serving the sentence, has demonstrated that further imprisonment is no longer necessary.
The law requires courts, when considering CER and RPM, to carefully verify whether the convicted person's application complies with the established requirements, whether the submitted materials are complete, whether the time limits entitling the person to CER or RPM have been reached, and to comprehensively assess positive changes in the convicted person's behaviour.
A court decision adopted following consideration of an application must be reasoned and contain a detailed justification of the conclusions reached by the court.
In recent years, public opinion has increasingly expressed concerns regarding the absence of clear criteria for CER and RPM and the insufficient transparency and objectivity of their application.
Accordingly, this review will make it possible to identify problematic issues arising in judicial practice and develop the necessary measures to ensure its uniformity.
The institutions of CER and RPM play an important role in the criminal justice system by promoting the social reintegration of convicted persons and reducing recidivism.
CER is the termination of criminal punishment imposed by a court before the expiration of the prescribed term due to the achievement of the objectives of punishment. In such cases, the conditionally released person is generally placed under probation supervision, during which they must ultimately demonstrate their rehabilitation and comply with the obligations imposed by the court.
RPM is an institution aimed at improving the position of a convicted person, whereby the punishment imposed is replaced with a more lenient type of punishment.
The principle of humanism underlies both institutions. In this context, CER and RPM are intended to encourage convicted persons to rehabilitate themselves as soon as possible and return to normal life.
The law makes the application of CER and RPM subject to two main criteria:
- Serving a specified portion of the sentence imposed, the absence of wilful violations, and compensation for damage (the formal criterion).
- Rehabilitation of the convicted person (the substantive criterion).
The application of CER and RPM falls within the exclusive jurisdiction of the court. Pursuant to Part 1 of Article 477 of the Criminal Procedure Code, these matters are resolved by the court operating at the place where the sentence is being enforced.
The grounds for a court to consider CER or RPM are limited to an application submitted by the convicted person, as well as an application submitted by the Prosecutor General or their deputy within the framework of a procedural cooperation agreement. Under the previous Criminal Procedure Code, these matters were considered upon a submission by the institution enforcing the sentence.
CER applies to convicted persons serving sentences of imprisonment or restriction of liberty, whereas RPM applies only to imprisonment.
For persons who committed offences as minors, CER may also be applied where they have been sentenced to corrective labour, whereas RPM applies only to persons sentenced to imprisonment.
CER and RPM may not be applied to the categories of persons listed in Part 8 of Article 72 and Part 2 of Article 73 of the Criminal Code.
For example, CER does not apply to persons convicted of serious or especially serious corruption offences, terrorist or extremist offences resulting in loss of life, and other offences specified by law.
In general, the application of CER and RPM is comprehensively regulated by Articles 72, 73, 86 and 87 of the Criminal Code; Articles 476, 477, 478 and 480 of the Criminal Procedure Code; Articles 161, 162 and 169 of the Penal Enforcement Code; as well as the Regulatory Resolution of the Supreme Court “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 Sentence Imposed.”
Since the adoption of the current Criminal Code, its provisions concerning CER and RPM have been amended repeatedly, and judicial practice has been adjusted accordingly.
The legislative amendments have mainly been introduced as part of a stricter criminal policy concerning offences that pose the greatest threat to society, including terrorist offences, corruption offences, and offences against the sexual inviolability of minors, among others.
Regulatory Legal Framework Used in Conducting This Review
The principal regulatory legal acts governing the issues covered by this review are:
- The Constitution of the Republic of Kazakhstan (hereinafter referred to as the Constitution);
- The Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code);
- The Criminal Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Procedure Code);
- The Penal Enforcement Code of the Republic of Kazakhstan (hereinafter referred to as the Penal Enforcement Code);
- Regulatory Resolution No. 6 of the Supreme Court of the Republic of Kazakhstan dated 2 October 2015, “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 Sentence Imposed” (hereinafter referred to as the Supreme Court Regulatory Resolution on Judicial Practice in CER and RPM).
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