Judicial practice on the replacement of the unserved part of the punishment with a more lenient type of punishment, as well as conditional early release from serving the sentence
In accordance with the work plan of the Supreme Court of the Republic of Kazakhstan for the first half of 2021, a summary of the judicial practice of reviewing materials on parole and replacing the unserved part of the sentence with a milder type of punishment for 2020 was conducted. The subject and purpose of the analysis Conditional early release (hereinafter referred to as parole) from serving a sentence, replacing the unserved part of the sentence with a more lenient type of punishment (hereinafter referred to as DMN) are complex legal institutions, an act of the state's trust in the convicted person, who by his behavior has shown that he does not need to fully serve his sentence, and this is encouraging the convicted person to further law-abiding behavior. Issues of their application are resolved in accordance with the procedure established by Articles 72, 73, 86 and 87 of the Criminal Code, articles 476, 477, 478 and 480 of the Criminal Procedure Code of the Republic of Kazakhstan (hereinafter – CPC) and articles 161, 162 and 169 of the Criminal Executive Code of the Republic of Kazakhstan (hereinafter - PEC). The subject of the generalization is the analytical certificates of the regional courts based on the results of the generalization of judicial practice for the consideration of this category of materials for 2020, individual judicial acts received from the regional courts, statistical data from the "Torelik" system. The purpose of the generalization is to form a uniform application of current legislation based on the study and analysis of judicial practice, identify problematic issues, develop proposals on them, and improve current legislation.
The legal framework is the Constitution of the Republic of Kazakhstan, 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 CPC), the Criminal Executive Code of the Republic of Kazakhstan (hereinafter referred to as the PEC), the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan "On Judicial practice of parole from serving a sentence, replacement of the unserved part of the punishment with a milder type of punishment and reduction of the sentence" dated October 2, 2015 No. 6 (with amendments and additions as of December 11, 2020). Since the adoption of the Criminal Code of the Republic of Kazakhstan dated July 3, 2014, Articles 72 and 73 of the Criminal Code have been amended and supplemented 6 times by Laws No. 501-V dated April 9, 2016; No. 217-VI dated January 21, 2019; No. 240-VI dated April 1, 2019; December 27, 2019 No. 292-VI; dated December 19, 2020 No. 384-VI; dated December 30, 2020 No. 393-VI, including with an increase in the length of time served for serious and especially serious crimes and an increase in the number of persons against whom UDO and DMN are not applied. Thus, the latest amendments and additions to these norms were introduced by Laws No. 384-VI of December 19, 2020, No. 393-VI of December 30, 2020, in particular, the following amendments were made to Article 72 of the Criminal Code: part one was supplemented by paragraphs four and five as follows: "Pregnant women, women with young children, men raising young children alone, women aged fifty-eight and over, men aged sixty-three and over, people with disabilities of the first or second group serving prison sentences for serious and especially serious corruption offenses, after the actual completion of the terms specified in parts three and five of this article, they may be released on parole by the court.
A person serving a prison sentence for a grave and especially grave corruption offense who has fulfilled all the conditions of a procedural cooperation agreement may be released on parole by a court after actually serving the terms specified in parts three and five of this article."; part eight is set out in the following wording: «8. Conditional early release does not apply to persons: 3) convicted of a grave and especially grave corruption crime, with the exception of: cases of such crimes committed by pregnant women, women with young children, men raising young children alone, women aged fifty-eight and over, men aged sixty-three and over, persons with disabilities of the first or second group; convicted who fulfilled all the conditions of the procedural cooperation agreement; 4) convicted of a crime against the sexual integrity of minors, except in the case of the commission of such a crime by a person who has not reached the age of majority, in relation to a minor aged from fourteen to eighteen years."; The fourth part of Article 73 of the Criminal Code has been supplemented with a second sentence as follows: "Reduction of the unserved part of the sentence is not applied to persons convicted of a crime against the sexual integrity of minors, except in the case of a minor committing such a crime against a minor between the ages of fourteen and eighteen." Frequent changes in legislation have caused difficulties for individual courts in the proper application of these legislative innovations. Thus, some courts mistakenly believed that one should be guided by the norms provided for in article 6 of the Criminal Code, according to which a criminal law that worsens the situation of a person who has committed a crime, including a person serving a sentence, is not retroactive; in this case, the law in force at the time of the commission of the crime is subject to application. Those courts did the right thing, which applied in practice the norms of the new Law, at the time of the decision on parole and DMN, and not in force at the time of the verdict. And in this regard, referring to the prematurity of the application, they refused to accept or satisfy the application for parole and ZMN.
It should be noted that the question of the possibility of applying or not applying conditional early release from punishment and replacing the unserved part of the sentence with a more lenient one should be decided in accordance with the law in force at the moment, and not with the law in force at the time of conviction or at the time of the commission of the crime. Thus, in accordance with article 2 of the Criminal Code, the criminal enforcement legislation of the Republic of Kazakhstan applies to convicted persons, in respect of whom punishments or other measures of criminal legal impact are carried out on the territory of the Republic of Kazakhstan. The execution and serving of punishments and other measures of criminal legal influence, the application of corrective measures to convicts, as well as assistance to released convicts is carried out in accordance with the legislation of the Republic of Kazakhstan in force at the time of their execution. The PEC does not provide for provisions on the retroactive force of its rules, therefore, in all cases, only the provisions of the current PEC apply.
Attention!
Law and Law Law Law draws your attention to the fact that this document is basic and does not always meet the requirements of a particular situation. Our lawyers are ready to assist you in legal advice, drawing up any legal document suitable for your situation.
For more information, please contact a Lawyer / Attorney by phone: +7 (708) 971-78-58; +7 (700) 978 5755, +7 (700) 978 5085.
Attorney at Law Almaty Lawyer Legal Services Legal Advice Civil Criminal Administrative Cases Disputes Protection Arbitration Law Firm Kazakhstan Law Office Court Cases
